Griffin v. Dauphin , 133 Ala. 543 ( 1901 )

SHARPE, J.

In Maxwell v. Pounds, 116 Ala. 551, and again in Marks v. Wood, ante, p. 533, it was held that an execution issued from the circuit court having indorsed thereon a statement of the costs, but without itemization of the costs as required by section 1883 of the Code, is by the terms of that statute made void. In the same section the statement to be indorsed on the execution is referred to as a “copy of the bill of costs.” Since there is no law requiring any officer of the circuit court to keep an itemized account of costs accruing in cm appealed from a justice court, we are of the opinion that the bill of costs which under the Code section referred to must be shoivn by items on executions from the circuit court, are such only as under the statutes are required to be kept by the officers of that court, and hence that the execution in question is not vitiated bir the fact that among the items of costs indorsed thereon magistrates’ fees purport to be shown only by a statement of their gross amount.

The doctrine of champerty which inhibits and makes void a sale of land in possession of a third person under a claim of right has no application to judicial sales. Humes v. Bernstein, 72 Ala. 546. It is immaterial, therefore, that defendant had through his tenants possession of the land when plaintiff’s vendor Salter bought the land at the execution sale.

As bearing on the question of whether Salter’s conveyance to plaintiff was champertous the facts are as follows : The execution under which Salter bought was issued against Chesser on November 22, 1898. Defendant bargained with Chesser for the land in December following and placed tenants on it in that or the next month. He received a deed from Chesser which bears date as of December 6th, 1898, but which was not executed by delivery until April or May, 1899. Salter immediately after his purchase at execution sale demanded possession of defendant’s tenants and they agreed to yield possession. Thereupon without leaving the premises those tenants rented the lands from Salter and thereafter they remained in attornment to Salter until he sold to plaintiff.

As a general rule a tenant is bound to recognize his landlord’s title and being under the legal obligation to restore the premises to his lessor when he quits, his mere attornment to a stranger is ineffectual to break the continuity of the landlord’s possession. But this rule is not without exceptions, one of which obtains where the landlord’s right has been subsequent to the lease terminated by an execution sale. — McCurdy v. Houston, 74 Ala. 162; Randolph v. Carleton, 8 Ala. 606; Pope v. Harkins, 16 Ala. 321; English v. Key, 39 Ala. 113; Otis v. McMillan, 70 Ala. 46.

The law in such case terminates the tenancy and justifies the tenant in attorning to the execution purchaser without waiting for eviction. His attornment under such circumstances effects a legal transfer of the possession from the original landlord to the purchaser. The right acquired by Salter at the execution sale related back to the inception of the lien created by the issuance of the execution and so was prior to defendant’s purchase. The lien culminated in the sheriff’s sale and .his deed conveyed to Salter such title as Chesser had on No.vember 22, 1898, thereby defeating such right as defendant acquired thereafter by his purchase. — Randolph v. Carleton, 8 Ala. supra. The subsequent attornment of his tenants to Salter operated to transfer his possession to Salter, and it was not regained until after the latter conveyed to plaintiff. The evidence being free from material conflict, the jury were properly charged in favor of the plaintiff.

Affirmed.