75 So. 714 | Ala. Ct. App. | 1917
The appearance of the defendant was special and limited; such was his intention, and this court will not permit him to say now that it was not such. Where this is the case, the quashing of the attachment puts an end to the suit, and the judgment rendered thereon will support an appeal. Woodruff v. Rose,
"Viewed in the light of these writings, it would be very difficult to work a conditional sale out of this transaction."
In this case the title was passed absolutely to the defendant and his wife. It was on the same day mortgaged back as a security for a debt which presumably was the purchase money.
To have vested the indefeasible title in Avant, there must have been a foreclosure, a reconveyance, or a release of the equity.
When construed together without more, this transaction was not a conditional sale. Wilkinson v. Roper, supra. The legal title to the property was in Avant, and the parties by agreement could have provided that the relation of landlord and tenant existed, thereby putting Avant in the position of a mortgagee in possession, in which case he would have to account for the rents received. But what is the real status and what the proper construction to be placed upon the contract? Adams had an election, if he failed to make payments when due, to pay $300 as rent, creating the relation of landlord and tenant; and the defendant then became the tenant with all the rights of landlord and tenant subsisting between them (Thornton v. Strauss,
The above being the law, and the affidavit claiming for rent due or to become due, and assigning as ground for the attachment the removal of part of the crop, the question as to whether the rent was due on November 2d, is not material. The relation of landlord and tenant existed between the parties from the date of the first default, and could only have been changed by a subsequent agreement or a payment of all of the purchase-money notes.
The court erred in granting the motion to dissolve the attachment and to discharge the levy; and for this error the judgment is reversed, and the cause is remanded. The motion to dismiss the appeal is overruled.
Reversed and remanded.