15 So. 2d 105 | Ala. | 1943
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *640 The appeal is from a decree overruling appellant's demurrer to the bill as amended.
The principal grounds of demurrer are whether the bill is multifarious, whether there is a misjoinder of parties, and whether the pleading shows a complete and adequate remedy at law.
It was declared that not only must each respondent have a community of interest in law and in fact in the matter before the court, but also each party must have an interest in the suit of the others. Do the facts averred offend this Rule? Wharton et al. v. First Nat'l Company of Birmingham,
The time limitation of the original lease having expired December 1, 1940, the lessee Charles Darring continuing in possession thereafter, the lease was, by its own terms, extended at appellee's option for a term ending September 30, 1941, but no further implied extension then or later resulted from lessee holding over after September 30, 1941, since the provision for renewal is completely performed by one renewal. Indian Head Mills v. Hamilton,
It is established that equity has jurisdiction to enforce liens of all kinds, there being no conflict of jurisdictions acquired by other courts, and not being limited by statute as to such lien for its enforcement. Code 1940, T. 33, § 1; Greil Bros. Co. v. City of Montgomery,
"In Cesar v. Virgin, 1921,
"The courts in many cases, while not defining as a condition subsequent a stipulation in a lease that it shall cease and be void in the event of the default of the lessee, or that on default by him he shall surrender possession, have held that the terminating of such a lease because of default by the lessee was optional with the lessor. * * *." 118 A.L.R. 295, 296.
In Harden et al. v. Wood Lumber Co.,
"Where improvement is made on land by lessee not prohibited by lease, mechanic's lien does not extend to the freehold, but only to the improvement and the leasehold. Code 1923, § 8834 [Code 1940, Tit. 33, § 39].
"A court of law cannot enforce liens except as expressly authorized by law.
"A court of equity could always enforce any sort of lien where there was no other remedy, and sometimes when there was, even before passage of statute conferring on equity power to enforce all liens though they are created by statute and statute provides a remedy. Code 1923, § 8935 [Code 1940, Tit. 33, § 1]."
See, also, Ex parte Deaton et al.,
It is further established that having duly taken jurisdiction the court retains it for all purposes to determine all rights, to render full and complete justice to all parties before the court, whether this right be legal or equitable. Tecumseh Iron Co. v. Camp,
It is declared that one let into possession by a lessee is presumed to be a licensee rather than a mere assignee [Samuel Gans Co. v. Tyson,
Code 1940, T. 31, § 46, as interpreted by decision, requires that:
"To support the action under this section for the use and occupation of land, the defendant must either have gone into possession of the land unlawfully, thereby subjecting himself to such liability under the fourth subsection of this section, or he must have been a party to a contract, express or implied, creating between him and the one seeking to hold him so liable the technical relation of landlord and tenant, or a relation importing like rights and duties. Hamilton v. House,
"In all cases brought under subsections 1, 2 and 3 of this section, 'there must exist a relation between the parties founded on an express or implied contract which estops the defendant from drawing the title of the owner into the controversy.' Burgess v. American Mtg. Co.,
The bill as amended has several aspects, viz.: (1) To enforce a lien for rent; (2) for discovery and accounting; (3) for determination of the ownership of liens on fixtures placed upon the rented land, if any; (4) to determine whether such fixtures may or may not be removed from the land after termination of tenancy, the rent lien being discharged; and for possession of the leased premises.
Under the jurisdiction and powers of a court of equity to render a decree that accords complete justice to all parties at interest, and under the several aspects of the bill as amended, a complete and adequate remedy is afforded in equity. The bill avers an original lease to Darring in writing, embodying the stipulations of the parties for the time indicated, and for the extension. It avers that there was default in the fulfillment of said terms; seeks to discover who is in possession of the premises; and what and by whom certain material, definite or necessary improvements have been made or erected on the premises pertinent to the oil or gas distribution conducted thereon. The bill seeks to ascertain who has had the use and occupancy thereof during the term of the lease under the right of extension and subsequently thereto, and what business is there conducted and what improvements have been placed on the land and the nature thereof; seeks a decision of the question as to who is liable for the rent, and for use and occupancy of the premises; and in what amounts. Hence the discovery sought.
It is the general rule that the averments of a bill to warrant relief must be complete and on admissions or on a decree pro confesso the court may award the relief prayed. McDonald v. Mobile Life Ins. Co.,
Here the relief prayed is for the enforcement of a lien or the right to compensation for use and occupancy. The bill is necessary for a discovery to that end and for an accounting in the enforcement of such lien. However, the ascertainment of the nature and extent of the lien, the character of improvements or fixtures placed upon the land by the tenant or subtenant, that may or may not be subject to the landlord's lien, can be known only on discovery. This shows that there was not a complete or adequate remedy at law for the enforcement of such lien. The case of Dudley v. Whatley, ante, p. 508,
Bills for "discovery" and "accounting" cannot be judged by the same strict rule of averment as bills merely for relief on the full facts that are alleged on demurrer. The instant bill being for relief and discovery, the rule that obtains on demurrer stated by Sims has long prevailed and is to be applied here. It is that if the plaintiff stated a cause in his bill which would entitle him to equitable relief against the defendant, it would be unjust to deny to the plaintiff any amount of discovery from the defendant which would enable him to establish his case and to enforce his lien in his suit. Taking the statement of facts as alleged in the bill to be true, if plaintiff is not entitled to any particular relief prayed, the bill would be subject to demurrer on that ground. Daniell Ch. Pr. § 604 and § 617; Sims' Ch. Pr. §§ 425-428; 30 C.J.S., Equity, §§ 286 et seq., and note; 27 C.J.S., Discovery, § 15, p. 27.
This is the rule on demurrer as applied to a bill for relief and discovery. Such is the bill before us for the enforcement of a lien for rent of lands in a city on which improvements have been erected by the tenant or subtenant with the knowledge of the landlord.
It follows that the decree of the circuit court is without error and is affirmed.
Affirmed.
GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur. *646
Addendum
The equitable right of the complainant is to enforce a lien for rent. This is the main basis of the equitable right asserted by the amended bill. The other features of the bill, which are set out in the opinion, are not sufficient to support the equity of the bill taken alone. And, therefore, it is necessary that the bill be sufficient to enforce a lien for rent. There is no lien for rent of a vacant lot provided by statute except on crops grown on said lot. The lot here in question was vacant when rented and no lien is sought upon crops grown on it and therefore it will not stand by virtue of that statute.
In the pleading and in brief attention is called to the feature of the contract as shown by the exhibit to the bill whereby the lessor shall have a lien upon all goods, chattels, effects and fixtures of the lessee on said premises or to be placed thereon during said term and the valuable improvements placed thereon. That is a sufficient provision by contract for a conventional lien [36 C.J. p. 483, note 64; Lewin v. Telluride Iron Works Co. et al., 8 Cir.,
In response to the application for rehearing, we advert to that feature of the contract which is sufficient for the establishment of the lien which a court of equity will enforce. Code 1923, §§ 8820, 8829, 8935; Code 1940, T. 31, §§ 46(3), 12; Code 1940, T. 33, § 1. The assignee has the like rights against his assignee under the Code. Code 1923, §§ 8827, 8828, Code 1940, Tit. 31, §§ 10, 11. And the decision in Emanuel v. Underwood Coal Supply Co., ante, p. 436,
We likewise call attention to Section 7-A of the bill as amended to the effect that Charles Darring, Eva Darring and Louis Darring have been the dominant persons in charge of the business on said premises; that said corporations were family owned corporations and were merely simulations for the purpose of operating said business on said premises. Such allegations make the defendants Darring proper parties, standing as they do in the shoes of Charles Darring (the lessee), even if the defendants and the corporations in question were not mere simulations, as is alleged. If they erected these structures indicated in or on the lot by virtue of the rights which Charles Darring acquired under the lease exhibited, this complainant will have a right to enforce the lien created by said contract. The other defendants would be in the same status that the original Darring was, whether they are mere fictitious corporations or not. 36 C.J. p. 483, note 64.
If we eliminate all reference to a discovery and rest the amended bill as standing squarely upon the equitable right to enforce the contract lien, it is sufficient.
The application for rehearing is overruled.
GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.