Whaley v. Wynn

In this action — unlawful detainer — the question is merely as to the right of possession between the parties to the record, regardless of whether the plaintiff, or the defendant, or a third person, has the superior claim to the ownership of the property. Nicrosi v. Phillipi, 91 Ala. 299, 8 So. 561.

The general rule is that the plaintiff must show prior possession in himself, but this means only a possession prior to the inception of the wrongful possession of the defendant — i. e., prior to the beginning of the unlawful detainer. And, "so long as the tenant holds under his lease, his actual possession is the actual possession of the landlord and proof of this actual possession, through and by his tenant, prior to and continuing to the time of the beginning of the unlawful detainer, fully meets the requirements of the doctrine under consideration." Nicrosi v. Phillipi, supra; Beck v. Glenn,69 Ala. 121.

In this case the lease was made in the name of the owner's agent, Mrs. Wynn. By his acceptance of such a lease and occupation of the premises thereunder, the tenant is effectually estopped to deny the right of Mrs. Wynn to recover the premises upon the expiration of his term, and Mrs. Wynn may properly maintain the action in her own name. Hinckley v. Guyon172 Mass. 412, 52 N.E. 523; 34 Cyc. 1413, c. The action is brought by Mrs. Wynn, for the use of Mrs. Mary C. Lowe, but Mrs. Wynn is the real party plaintiff, and the phrase "for the use of Mrs. Mary C. Lowe" may be treated as surplusage, and is without significance so far as the defendant is concerned. Gambill v. Cooper, 159 Ala. 637, 48 So. 691. But there is no impropriety in such a use of the phrase, and it does not render the complaint demurrable. Cooper v. Gambill, 146 Ala. 184,40 So. 827.

Mrs. Wynn being the actual plaintiff, it was necessary that the statutory demand for possession should be given by her, or in her name by some one duly authorized thereto. Kennedy v. Hitchcock, 4 Port. 230. The bill of exceptions shows that this demand was made in the name of Mrs. Wynn, by Sterling A. Wood, as agent and attorney; and it shows also that Wood was employed by Mrs. Lowe to do all things necessary to recover the possession of the property, and that he was authorized by Mrs. Wynn in writing to take "such action at law or equity as may be necessary to recover said property, and the use of her name in the same."

It was not only proper to show the employment and authority of Wood to do the things he did, but it was necessary to the plaintiff's case, and the trial court properly received the writing offered in evidence thereof. Barnewell v. Stephens,142 Ala. 609, 38 So. 662.

It is true that the signature of Mrs. Wynn was not proven, but no objection was made to the introduction of the writing in question when first put in evidence. It seems to have been offered in evidence a second time, unnecessarily, when a number of objections were made to it by defendant. Conceding that one or more of those grounds of objection may have been well taken, the adverse ruling thereon was without prejudice, since the paper was already in evidence without objection, and defendant then had no right to have it excluded.

Defendant claims to be in the rightful possession of the premises under and by virtue of the lease executed to him on July 24, 1920, by the Smith Cullom Company, as agents, in the name of Mrs. Maude Wynn. It is not necessary to determine whether or not that lease was executed under such authority and understandings (apart from the statute of frauds) as would have bound Mrs. Wynn or Mrs. Lowe on general principles of contract or estoppel. But, being a contract not to be performed within one year from the date of its making, it was not binding on the lessor unless it was in writing, and subscribed by her, or by "some other person by her thereunto lawfully authorized in writing." Code, § 4289, subd. 1. And it appears without dispute that the Smith Cullom Company had no written authority to make the lease. The lease was expressly repudiated by Mrs. Lowe, the undisclosed principal for whose benefit it was made, before the beginning of its term, and it was not removed from the ban of the statute by the lessor's or owner's acceptance of any rent paid thereunder by the lessee either before or after the beginning of its term. Defendant can therefore derive no benefit from that lease, and his detention of the premises after September 30, 1920, was nevertheless unlawful.

We think that every element of fact necessary to plaintiff's recovery is shown by the record without dispute, and that the general affirmative charge was properly given at plaintiff's request.

We do not overlook the numerous other questions presented as to the admission and rejection of evidence; but those questions, however ruled, could not affect the result, and their consideration is therefore immaterial.

Finding no material error in the record, the judgment will be affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.