Avant v. Adams, 75 So. 714

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,43 Ala. 382, and authorities cited in Plunkett v. Dendy, 72 So. 525.¹ The only other question is the action of the court in dissolving the attachment. It is very clear that the owners or their agent proceeded with the collection of the moneys each year upon their construction of the contract, which was that, if the defendant did not pay the purchase-money note each year, he must pay $300 as rent, which upon final settlement would be applied on the purchase money; and it is evident the defendant so considered it until he made default. As was said in the case of Wilkinson v. Roper, 74 Ala. 144:

"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, 79 Ala. 164) reserving only, as mortgagor, the right to redeem. It is quite clear from the writings between the parties that in the event of a failure on the part of the purchaser to make the first payment the contract was not to be canceled, but the possession was to be redelivered constructively to the seller, and the purchaser was to remain as a tenant at the stipulated rental until the debt was paid (in which event the purchaser was to have the benefit of the rent payments) or the mortgage foreclosed and his right to redeem terminated. The above views are sustained by the following authorities: Thornton v. Strauss, supra; 24 Cyc. 886. Of course, should the defendants redeem the land, these payments would have to be accounted for, as in cases where the mortgagee takes possession of the mortgaged premises without foreclosure. This must not be confused with the line of cases defining rent and sale contracts. Patterson v. Folmar, 125 Ala. 130,28 So. 450, and others declaring similar principles. In the Patterson Case the title never passed from the vendor to the vendee; and in case of failure to pay promptly, "time being of the essence of the contract," the contract to sell was canceled, and the contract of rent became in force and related to the beginning. It was a conditional sale of land; but in this case the title has passed without condition, and the relation of mortgagor and mortgagee arises.

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.

¹ 197 Ala. 262.