Hill v. Harris

SOMERVILLE, J.

Appellee recovered of appellant the possession of certain land in an action of- unlawful detainer begun on February 28, 1908. The principal questions presented by the appeal relate to the question of the plaintiff’s prior possession of the land sued for, and its sufficiency for the maintenance of the action.

The folloAving facts are shoAvn without dispute: The defendant was the OAvner of the land and in possession of it, and conveyed it by mortgage deed, in December, 1906, to one C. L. Price. About November 28, 1907,' Hughes & Tidwell, a partnership, purchased this mortgage from Price, and advertised the land for sale on November 30, 1907. At this foreclosure sale Tennis Tidwell, as attorney and agent for Hughes & Tidwell, bought in the land, with the understanding that he should deed it back to them, which he did on February 12, 1908. In the meantime, on February 10, 1908, Hughes & TidAvell executed a deed conveying the- land to Shelley Harris, the plaintiff.

Fred TidAvell (of Hughes & Tidwell) testified that he Avent to see defendant several times in February, 1908, and also in December, 1907, about giving up possession of the land; that he Avent to see her on February 9, 1908 (Avhieh was Sunday), and told her that they had bought the land at mortgage sale, and that they must have possession of it; that they would allow her to remain in possession from that time up to February 20th without paying rent, as she said she would have to get out and get a house someAvhere; that defendant then and there said to him: “I surrender possession of this place to you uoav, and I acknoAvledge you as owners of the land.”

If it were conceded that this Avas sufficient to effect a transfer of the possession from defendant -to Hughes & Tidwell, and to initiate a tenure of tenancy at will by virtue of their permission to her to remain on the place, and so entitle Hughes & Tidwell to maintain unlawful detainer upon the termination of such tenancy, nevertheless, under the settled construction of our statutes defining an unlawful detainer (sections 2852, 2859, Code 1852; sections 4263, 4271, Code 1907), one who has merely purchased from the landlord during the tenancy cannot maintain the action. — Dwine v. Brown, 35 Ala. 596; Cooper v. Gambill, 146 Ala. 184, 40 South. 827; Shepherd v. Barber, 157 Ala. 493, 47 South. 1027. If the tenant has attorned to him, this rule, of course, has no application.

It is true that such a purchaser acquires all the rights of his grantor, with respect to the land, and the enjoyment and enforcement of the covenants of the lease, and this without any express attornment to' him by the tenant; and true, in fact, that such a purchaser becomes thereby, after notice given, the lawful landlord of the tenant. — Nicrosi v. Phillippi, 91 Ala. 299, 305, 8 South. 561. 'But the dictum in that case that under such a relationship the purchaser landlord may oust the tenant in an action of unlawful detainer is opposed to our decisions, and must be rejected as erroneous. The reason for the rule is found in the statutory limitation that “the estate or merits of the title cannot be inquired into” in this form of action; and this inhibition would 'be violated if the plaintiff were allowed to show a right to recover by proving a grant to himself from the landlord of the defendant. — Dwine v. Brown, 35 Ala. 596. An obvious corollary to the rule is that his alienation of the premises, whether voluntary or involuntary, cannot be considered in defense of the lessor’s action to recover possession, since this would equally involve o consideration of title. — Pugh v. Davis, 103 Ala. 316, 18 South. 8, 49 Am. St. Rep. 30; Davis v. Pou, 108 Ala. 443, 19 South. 362; Howard v. Jones, 123 Ala. 488, 26 South. 129; Shepherd v. Parker, 157 Ala. 493, 47 South. 1027. A seeming exception to the principle of the rule has been recognized in the case of a descent cast by law upon the lessor’s heirs pending the lease; and they are held to be entitled to maintain the action in the place of their ancestor, as he might have done, if living.— Kellum v. Balkum, 93 Ala. 317, 9 South. 463.

Charges b, c, d, e, f, and g, given to the jury at the instance of plaintiff, authorize a. recovery in violation of the rule stated above, and were therefore erroneous. So the application of that rule to the evidence before the court required the giving of the general affirmative charge for defendant, as requested by her in writing, and which was refused by the court.

It results that for these errors the judgment must be reversed and the cause remanded.

Reversed and remanded. All the Justices concur, except Dowdell, C. J., not sitting.