Treadwell v. Torbert , 133 Ala. 504 ( 1901 )

SHABPE, J.

In controversies involving merely disputed questions of fact affecting title to land freed from matters calling specially for relief in equity, the right of trial by jury prevails, and for the settlement of such disputes courts of law afford the appropriate remedies. Duress when employed to procure a conveyance of property is a species of fraud, and is not of itself a ground of equitable jurisdiction. Hence, one who would sue only to avoid his deed to lands by fraudulent practices, and whose asserted title and estate are such as Avould support ejectment, cannot bring his case under the jurisdiction which exists in equity to cancel deeds and un cloud titles, unless he is in possession of the land and is so disabled to sue in ejectment. — Peeples v. Burns, 77 Ala. 290.

.Nor will possession gained by a Avrong to his adversary serve in such case to give a complainant standing-in equity, for equity will not so encourage unfairness; and consequently this court has held unavailing to a complainant, a possession obtained by having tenants of his adversary attorn to him, because in so doing the complainant cooperated with the tenants in violating the duty they owed their landlord, of. surrendering to him possession at expiration of the lease. — Fleming v. Moore, 122 Ala. 399; Campbell v. Davis, 85 Ala. 56.

In the present case the main facts relating to possession as Ave find them from the evidence are as folIoavs: Soon after the deed in question was executed, defendant Avas let into the possession of the property it conveyed and Avhicli consisted mainly of farm lands, though two town lots were included. The lots were vacant and no acts of ownership over them are shown to have been done by either party except that defendant has paid taxes on them and offered them for sale. Defendant rented the farm lands in 1896 and 1897 to a tenant Avho cultivated part and sub-let the remainder of what he had rented. In 1898 this tenant refused to surrender the lands to defendant and suffered the subtenants to remain thereon. The possession of these' lands on which complainant relies, is such only as she holds by virtue of a contract whereby she agreed to rent the land to those persons who had previously rented from defendant’s tenant, and through the occupation of those persons as her tenants.

The duty of surrendering possession at the end of the rental term rests on the sub-tenant no less than on the first tenant. — Russell v. Erwin, 38 Ala. 44; 18 Am. & Eng. Ency. Law, 403. Complainant, by contracting with them for their continued occupation, encouraged them to violate that duty; and in doing so was culpable in no less degree than if they had been the original tenant.

The principle applied in Fleming v. Moore, supra, governs this case; and under it the decree will be affirmed.