Johnson v. Tuggle ( 1854 )

Mr. Justice Handy

delivered the opinion of the court.

This was a proceeding of unlawful detainer before justices of the peace in Tishomingo county, and taken by appeal to the circuit court of that county, where a verdict and judgment were rendered for the defendants, from which the case is brought here.

The first objection taken to the proceedings below is, that the justices, on the trial before them, overruled the motion made by the defendants to quash the proceedings, on the ground that the affidavit attached to the complaint did not show the name of any person taking the oath. When this motion was made, the justices allowed an amendment supplying the name of the plaintiffs’ attorney who really made the affidavit, but whose name was omitted through mistake. The denial of the motion to quash and the allowance of the amendment are alleged to be erroneous, but we do not consider the objection well founded. The omission of the affiant’s name was shown to be a mere clerical error, which it was entirely competent to correct, and which was fully within the powers of the court in relation to amendments.

The next error assigned is, that the verdict and judgment were not only for the possession of the land, but for rent.

The complaint was instituted under the act of 1822, § 4, Hutch. Dig. 813, and claims the possession, only of the land. No demand is made for rent under the provisions of the act of 1846, Hutch. Dig. 821, and we are of opinion that it was error to render a judgment for rent of the premises, unless a claim for rent were set up in the complaint. The act of 1846 merely gives the right to recover the rent in a proper case. It does not dispense with the necessity of demanding it in the complaint. Upon general principle, the defendants were entitled to notice of the entire claim of the plaintiffs, in order that they might come prepared to meet it; and of course the plaintiffs’ recovery could extend no further than their demand.

But there is an error of a more serious character in the proceedings.

It appears that the plaintiffs had contracted to sell the land to the defendant Johnson for the sum of $1,000, for which she had executed her note payable 1st of January, 1852, and the plaintiffs had executed a bond for title, binding themselves “ to make to the vendee or her assignee a good and sufficient title to the land on the payment of the purchase-money.” After the maturity of the note, an agent of the plaintiffs called on the defendants, demanding payment, and stating that he had a deed for the land to be delivered upon payment of the money; in answer to which it was stated that the land was subject to an incumbrance which was specified, upon the discharge of which the purchase-money would be paid; that the defendants wished to retain the land, and wanted a good title according to the title bond. No notice appears to have been given that the plaintiffs considered the contract at an end. But on the contrary, the defendants offered in evidence a declaration and pleadings thereupon upon the note given for the purchase-money, instituted to the March term, 1852, which were objected to by the plaintiffs, and the objection sustained. The present proceeding was instituted in January, 1853.

Now it is clear, that the plaintiffs were not entitled to the possession of the land, unless the contract for the sale of it was put an end to. They might have put an end to the contract by proper steps, and then proceeded for possession of the land; or they might have held the purchaser to the bargain and sued on the note for the purchase-money. But it is plain that they could not do both, and that the one course is wholly inconsistent with the other.. No evidence is adduced on the part of the plaintiff to show that the former course was pursued, and it is proved by them that the defendants did not desire to put an end- to the contract. The completion of the purchase was not limited to any particular time, the terms of the title bond being to convey the title upon the payment of the purchase-money generally, and not by any specified time. Hence it was necessary that the plaintiffs should determine the contract in order to have the right of possession of the land. Of this there is no evidence; but on the contrary, the evidence of the suit on the note offered by the defendants tended directly to show, that the plaintiffs considered the contract of purchase as still in force, for otherwise the note upon which their suit was brought was without consideration.

It is therefore manifest, that this evidence was material and proper upon the trial of the issue of the plaintiffs’ right of possession, which depended mainly upon the question whether they had put an end to the contract, and that it was improperly rejected.

For these errors the judgment is reversed, and a venire de novo awarded.