Bain v. Wells , 107 Ala. 562 ( 1894 )

COLEMAN, J.

The appellant, George Bain, sued Wells, as sheriff, for the wrongful seizure of four hundred bushels of corn levied upon under an attachment sued out by one McDonald, as administrator, against Simps Bain, brother of plaintiff. The defendant pleaded the general issue, and justified under two special pleas, numbered two and four.

The pleas of the defendant showed substantially the following facts, and the evidence tended to support them : That for the year 1890 McDonald, as administrator, rented certain lands to plaintiff, George Bain. That some time in December, 1890, McDonald, as administrator, at public auction rented the same lands for the year 1891 to Simps Bain, and that plaintiff George Bain was present at said renting and bid for the lands. That the rent for the year 1891 not being paid at maturity, the landlord brought suit against Simps Bain, on the rental contract, and sued out an attachment against him to enforce the landlord’s lien for the unpaid rent, which attachment was levied by the sheriff on the corn in controvcrsy. Simps Bain litigated the attachment suit, but plaintiff recovered a judgment against him for the amount agreed to be paid, and obtained an order of condemnation of the corn levied upon. When the sheriff went on the premises to levy the attachment ho found George Bain, the plaintiff, in possession and in possession of the corn. George Bain notified the sheriff the corn belonged to him, and that he would hold the sheriff responsible for it, but pointed out to the sheriff the corn as grown on the lands rented by Simps Bain from McDonald. In the present action, the plaintiff contended, first, that the contract of renting to Simps Bain being in parol was void under the statute of frauds ; second, that the corn with the exception of thirty bushels was grown upon his own lands, and tho lands of his wife ; third, that he did not surrender possession of the premises after the termination of the rental contract for the year 1890, and the relation of landlord and tenant between himself and any other person never existed.

As to the first proposition. If Simps Bain failed to plead the statute of frauds in the suit against him, the omission is not available to plaintiff in the present action. If he did plead it, the issue was determined against him. —Cooper v. Hornsby, 7l Ala. 62; Gafford v. Stearns, 51 Ala. 434; Shakespeare v. Alba, 76 Ala. 351. The judgment recovered against Simps Bain under tho pleadings, so long as it remains in force, there being no fraud or collusion, is conclusive on Simps Bain, that the relation of landlord and tenant existed, between McDonald and Simps Bain, and conclusive on George Bain of the amount due for rent.

As to the second proposition, the sheriff testified that when he went on tho premises, •'‘the plaintiff pointed out to him the corn he seized, and said ‘there is the corn grown on the lands rented by McDonald to Jas. S. Bain, Jr., and that he levied on the corn so pointed out. The rule is very broad and plain, that when a person by word or conduct voluntarily induces another to act on a belief in the existence of a certain state of facts, he will be estopped as against him to allege a different state of facts. — Larkin v. Mead, 74 Ala. 485; 7 Amer. & Eng. Encyc., p. 20 and note. If the evidence of the sheriff was true, the plaintiff estopped himself from any advantage which might have arisen by proof that the corn levied upon grew upon his own or the lands of his wife. The instructions of the court on this phase of the evidence were free from error.

Plaintiff’s third proposition involves a consideration of pleas two and four. The plaintiff joined issue upon plea number two, without questioning its sufficiency by demurrer or otherwise. We presume that issue was joined, because of the averment at the close of the plea, “that said property was liable to said writ of attachment.” This was a mere conclusion. The evidence clearly tended to support every fact in the plea.

The fourth plea averred a state of facts, which if true showed that plaintiff held and occupied the land under such circumstances as to render the crop raised by him subject to the landlord’s claim for rent. It avers that plaintiff rented the lands from McDonald for the year 1890 ; that J. S. Bain, is brother, rented the same lands for the year 1891; that George Bain well knowing said fact and acting in collusion with said Simps Bain, retained possession of said lands and cultivated the same for the year 1891, After stating these and some other facts, which if proven established defendant’s justification for making the levy, the plea further averred that on the trial of the suit of the administrator McDonald against Simps Bain “one of the issues arising in the same was the collusion of said Simps and George Bain and on said trial the issues were found in favor of said McDonald and said parties found to be the tenants of said McDonald * * * -* an¿ ¿hat tpe piaintiff George Bain was present, aiding and assisting Simps Bain, advising with his counsel and testifying for him, and that McDonald recovered judgment against Simps Bain,” &c. Several grounds of demurrer were interposed to this plea. Each was directed against the plea as a whole. As a plea of res adjudieata, if such was the purpose of the pleader, to the demand of George Bain, the plea was insufficient. See authorities cited in the note to case of Baptist Church v. Manchester, 33 Amer. St. Rep. 893. It does not state what the issues were which determined any right or contention of the plaintiff George Bain, put in issue in the present action. All that is said in the plea in reference to the trial of McDonald v. Simps Bain may be stricken out and a good plea will remain. If plaintiff had moved to strike out the averments made in reference to the suit against Simps Bain, or if ho liad demurred to such part of the plea, the-objection would have Been well taken, but the grounds of demurrer going to the whole plea, we think they were properly overruled.

The pleadings and judgment in the case of McDonald v. J. S. Bain and the issues of that contest, the action of George Bain, aiding in the defense, tended to support the pleas of the defendant and were properly admitted in evidence.

We have considered the case as tried by the court on the special pleas. The case might have been disposed of under the general issue. The uncontroverted evidence shows that as to Simps Bain (the same person as J. S. Bain) George Bain became his tenant by holding over after the termination of his rental contract for the year 1890. — Burbank v. Dyer, 54 Ind. 392; 12 Amer. & Eng. Ency. p. 676, note; Robinson v. Holt, 90 Ala. 115. He never denied and could not deny the right of McDonald his landlord to the possession. He knew, when he held over, the fact that Simps Bain had rented the lands for the year 1891. Although there is no privity of contract between a subtenant and the landlord, the crop raised by a derivative lessee, is subject to the rental contract between the landlord and tenant, at least to the extent of his liability under his contract for holding over. The levy of the attachment on the corn and suit by the landlord against J. S. Bain and judgment for the landlord, and the tenancy of George Bain under Simps Bain by his holding over, all being established by the uncontroverted facts, there were but two questions open. First, was the corn raised on the rented premises? Second, if not, had the plaintiff estopped himself by pointing out the corn to the sheriff, as corn raised on the rented premises which statement induced the defendant to make the seizure?

We find no error in the record.

Affirmed.