Reese v. Rugely , 82 Ala. 267 ( 1886 )

CLOPTON, J.

— The defects in the affidavit, as averred in the plea in abatement, are, that it fails to show tiiat the advances were made during the existence or continuance of the tenancy, and that the demand was made after the maturity of the debt. The statute declares, that whenever a tenant fails to discharge his indebtedness for advances, and continues his tenancy under the same landlord, the balance due shall be held as an advance towards making the crop of the succeeding year, for which a lien shall attach upon the crop. — Code, 1876, § 3469. To constitute the balance due a new advance, it is not requisite that tenancy of the same land shall continue. The essential fact is the continuance and identity of the relation, aud not the identity of the land. — Thompson v. Powell, 77 Ala, 391. Though the better practice, it is not necessary, in case of a continued tenancy, that the affidavit should state specifically that the advances were made during the preceding year, if such be the fact, and that the tenant failed to discharge his indebtedness for such advances. The effect of the statute is to make the balance unpaid an advance for the following year; and it may be stated in the affidavit generally as-due for advances towards making tbe crop of such year.— Gunter v. DuBose, 77 Ala. 326. The jurisdictional facts may be shown by express averments, or by necessary implication. While the affidavit might have been drawn with more definiteness, giving it the benefit of a liberal construction, as the statute requires, it sufficiently shows that the relation of landlord and tenant existed, and that the advances were made for the statutory purposes during the continuance of the relation.— Gunter v. Du Bose, supra.

The affidavit sets forth, as the ground of attachment, that the amount of the advance “ is due and unpaid, and that, after demand make by affiant, the said Jim Rugely refuses or fails to pay it.” In Fitzsimmons v. Howard, 69 Ala. 450, the affidavit was held defective, because it failed to aver a demand after the maturity of the debt. The maturity of the claim was averred in the affidavit in the present tense, while the past tense is used in stating the refusal or failure to pay after demand. The averment of the demand was in the form of recital, from which it could not be implied that it was made after the debt became due. The affidavit might be true, and the demand made when it was not the duty of the tenant to pay. But the affidavit in question uses the words of the statute, with an immaterial transposition. We are not authorized to exact greater certainty, or more special averments, than the statute prescribes. Conclusions or inferences need not be negatived. An affidavit, setting forth the ground of attachment substantially in the words of the statute, is sufficient.— Gunter v. Du Bose, supra.

Reversed and remanded.