Cooper v. Gambill , 146 Ala. 184 ( 1906 )

WEAKLEY, C. J.

This is an action of unlawful detainer, in which appellee was defendant in the circuit court. In the lease, under which he held possession of the property, he agreed with his lessor, H. D. Cooper, that, in the. event the. latter sold the residence, possession would be given, if required, within a reasonable length of time thereafter. In a few months the lessor sold the property to A. E. Leishman, for whose use this action was brought; and notice of the purchase was communicated to the defendant, within a few days, by the purchaser’s agents, who at the same time requested Mm to give possession within or before 30 days from the date of the notice. This notice was given on April 23, 1900. The evidence shows, without conflict, that the defendant on May 3, 19(10, called, upon said agents and offered to pay rent for one-third of the month of April and for all of the month of May. The rent for the period stated Avas accepted, but the agents insisted that the defendant must surrender possession by or before June 1,' 1900, to Avhich date the rent Avas paid. The lessor, Cooper, Avas .absent from the state at the time of the sale, and did not, by any act of his, further than the making of the sale, undertake to terminate the lease. . T'he lease aauis transferred in Avriting to the purchaser who bought tire property. On June 1, 1900, Cooper and Leishman, the purchaser', united in a joint Avritten demand upon the defendant for the possession of the" residence; and to 'this demand, the testimony, Avithout conflict, sIioavs that the defendant replied by saying “he Avas not going to get out of the house, that he Avas building a home of his 0AArn Avhicli would not be ready until the latter part of the summer or fall, and he Avas not going to move until his house was ready, and that it would taire that long to get him out of the house by process of law, and he Avas going to' taire the risk of staying there any Avay.” The defendant having refused to vacate, upon the demand of June 1st, the'lessor, Cooper, preparatory to bringing this suit, made the written statutory demand for possession, which was likewise refused.

The agreement in the lease for a surrender of possession Avithin a reasonable time, if required, upon the sale of the property, Avas inserted to enable the owner to more easily sell, if he wished to do so; and it was likewise for the benefit of the purchaser, giving him the option either tó pontinue the lease and receive the rents as a. return on his investment, or to have possession, either for his own use or that he might obtain an advanced rental. It Avas, after the sale, manifestly of no interest to the lessor AAthether the purchaser terminated the lease or not; and we think it Avas peculiarly the office of the purchaser to indicate, to the lessee his purpose and desire to have possession of the premises, according to the stipulations in the lease; and he properly gave the notice to that effect. — Aydlett v. Pendleton, 114 N. C. 1, 18 S. E. 971; Reeder v. Sayre, 70 N. Y. 180, 188, 26 Am. Rep. 567; People v. Rickert, 8 Cow. (N. Y.) 226. We are of the opinion that, as a matter of law, the reasonable time witliiu which the defendant should have given possession had expired on June 1, 1900, since he was notified of the purchaser's insistence upon possession more than -two- months before that date-. — McDevitt v. Lambert, 80 Ala. 536, 2 South. 438. If, however, the question was subject to proof, the undisputed evidence of real estate agents, familiar with, local conditions, shows that he could have easily obtained another house within 30 days if he had made any effort to- obtain one. The time within which he could procure a house of like kind and similarly situated on a lot of like dimensions was not the test, and the circuit court erred in allowing the witness Smith to testify that it would require any where from 45 to 60 days to- secure such a house.

The action of unlawful detainer could not be maintained by the purchaser in his own name alone. — Dwinc v. Brown, 35 Ala. 596; Harrison v. Middleton, 11 Grat. (Va.) 527. It was entirely p-roper, however, for the lessor to institute the suit for the use of the purchaser, the real party in interest. The circuit court erred in giving the affirmative charge for the defendant. On the contrary, the plaintiff’s written request for the affirmative charge, with hypothesis, should have been granted.

Reversed and remanded.

Haralson, Dowdell, and Denson, JJ., concur.