Barnewell v. Stephens, 142 Ala. 609

142 Ala. 609 | Ala. | 1904

ANDERSON, J.-

-The complaint in this case contains two counts, one for unlawful detainer and the other for forcible entry. There was judgment for the plaintiff in the court below and the defendant appeals.

In order for the plaintiff to recover under either count, he must have had a previous possession of the premises. There was no evidence to support the count for forcible entry as the defendants were in possession, at the time the plaintiffs pretended possession began, and if they were guilty of anything, it was for holding over after the termination of the possessory interest, as- tenants of the plaintiff.

The undisputed evidence was, that the defendants had been in possession of the land for years. But plaintiff claims that they attorned to- him, and became his tenants at will, and bases his possession upon said attornement made to his agent Austill, and which if true, will give the plaintiff a right of action for an unlawful withholding. — Barefoot v. Wall, 108 Ala. 327; Anderson v. Anderson, 104 Ala. 428; Nicrosi v. Phillipi, 91 Ala. 299.

It appears from the evidence of Judge Austill, that Louisa and Henry Barnewell agreed to become the tenants of the plaintiff, and. that they did so in the presence and hearing of all of the members of tlhe -family, some of whom are made parties defendant with their mother, Louisa Barnewell.

“An unlawful detainer is, where one has lawfully entered into possession of lands or tenements, and after the termination of his possessory interest, refuses, on demand, in writing, to deliver the possession thereof to any one lawfully entitled thereto, his agent or attorney.” Code, 1896, § 2127. In other words, before the suit can be maintained, there must have been a termination of the tenants possessory interest. If the defendants became the tenants at will of the plaintiff, he had a right to terminate the relationship, but he must have given some notice to them of his desire or intention to terminate, before he had the right to make the written demand for the delivery of the possession. And in the absence of proof showing a termination of defendant’s possessory interest, they were entitled to the general affirmative charge. — McDevitt v. Lambert, 80 Ala. 536.

The rule of law is, that by disclaiming and denying the landlord’s title or asserting an adverse claim to title in himself, openly and notoriously, brought to the notice of the landlord, the tenant commits a forfeiture. Generally, attornement, or delivery of possession, to a stranger or adverse claimant, or any act disavowing the title of the landlord, and claiming a superior hostile title or ownership, amounting to a repudiation of the tenancy, will establish a ground of forfeiture. — Dahem v. Barlow, 93 Ala. 120.

There was no legal evidence of acts on the part of the defendants sufficient to create a ground of forfeiture ;ind thereby terminate their possessory interest. On the other hand, the witness Judge Austill, testified that he visited them and told them, that he had heard rumors of a. hostile claim, and that they then and there denied the rumor and recognized the plaintiff’s title.

The plaintiff did introduce in evidence, over the objection of the defendants, a certain record setting up a claim to land by these defendants, as set out in the accompanying map made by one, Bart, and Avhich was not competent evidence, as the map described land in an entirely different section from the land sued for in the complaint. But even with the record in, there was no evidence to show a termination of the defendant’s possessory interest to the land in controversy, by forfeiture or otherwise.

The statute requires that a written demand be made after the termination of the possessory interest by any one lawfully entitled thereto, his agent or attorney. The demand in this case was made by Ervin and Sims as attorneys for plaintiff, and there is no question but what the statute gives the agent or attorney the right to make the demand, but the evidence should show that the party who makes the demand was, in fact, the agent or attorney when the written demand was made. Nor does' the subsequent bringing of the suit by them as attorneys, create the presumption that they were such when the demand was made, and dispense with the necessity on the part of the plaintiff of proving that they were his attorneys when they made the Avritten demand.— Jesse French Piano Co. v. Johnston, (Ala.) 37 South, 924; Strauss v. Schwab, 104 Ala. 669; Butler v. Jones, 80 Ala. 436; 2 South, 300; Bolling v. Kirby, 24 St. Rep. 789 and note; Moore v. Refrigerator Co., 128 Ala. 621; Kennedy v. Hitchcock, 4 Porter, 230; 2 Greenleaf on Evidence, 644.

It is always presumed that an attorney appearing and acting for a party to a cause, has authority to do' so, and to do all other acts necessary or incidental to' the proper conduct of the case, and the burden of proof rests on the party denying such authority, to sustain his denial by a clear preponderance of the evidence.' — 3 Am. & Eng. Ency. LaAv, p. 375. The presumption of employment or authority, however, is not indulged in by the court’s anterior or incidental to the accrual of the cause of action.

It Avas said in the case of Brahn v. Jersey City Forge Co., 38 N. J. Law Rep. 76: “The demand of possession was in writing, signed ‘The Jersey City Forge Company, by B. Buchanan Yale, Pres’t,’ and service thereof Avas acknoAvledged by Brahn in writing. The sufficiency of the demand is denied, on the ground that it does not appear affirmatively that it Avas a demand by the landlord or his lawfully authorized agent. The act authorizing this summary proceeding preserves the rule of the comm'on law that the notice to quit must be given by the landlord personally, or by his duly appointed agent. If by the agent, it must appear that he is clothed with power to give the notice at the time it was given. Ordinarily, a subsequent ratification of an agent’s act by the principal will be sufficient, but between landlord and tenant the rule with regard to the notice differs from that which governs between principal- and agent as to other transactions. A subsequent assent on the part of the landlord will not establish by relation a notice given in the first instance without his authority. The reason is that the tenant must act upon the notice at the time it is given; and it must, therefore, at that time, be such a notice as he can act upon with security, and if authority by relation were sufficient, the tenant would be subject to the injustice of being left in doubt as to his action until the ratification or disavowal of the principal. ****** * The mere fact, therefore, that the company adopted the act of its agent by instituting these proceedings, based upon the legality of the demand for possession, is not, of itself, sufficient to- justify the implication that the agent had the requisite authority at the time he served the notice.”

Judge Story, in his work on Agency, § 246, saj^s that if the act done by the agent would, if authorized, create a right to have some act or duty performed by a third person, so as to subject him to damages or losses, for the non-performance of that act or duty, or would defeat a right or estate already vested in the latter, there the subsequent ratification or adoption of the unauthorized act by the principal, will not give validity to it, so as to bind such third person to its consequences; and within' this rule he instances the case of a notice to quit given by an unauthorized person for the landlord, subsequently ratified by the latter.

“A well recognized illustration of this rule exists, also, in the case of landlord and tenant. Thus- a subsequent assent on the part of the landlord will not establish by relation an unauthorized notice to quit given by his agent. The tenant must act upon the notice at the time it is given, and the notice must, therefore, at the time, be such as he can act upon with security; otherwise the tenant would be subjected to the injustice of being left in doubt as to his action until the ratification or disavowal of the principal.”- — Mechera on Agency, § 179.

• The refusal of the trial court to exclude the evidence of Mrs. Thompson in its entirety was free from error. Upon the cross examination she admitted that all that she knew about her mother renting the place to Barnewell was hearsay. But she did testify that her mother put Barnewell in possession of the land, as an independent fact and which was relevant evidence. The trial court cannot, be put in error for refusing to exclude the whole of a witness’ testimony, if any part of it was relevant.

The deed from Mrs. Cleveland to the plaintiff was admissible to show the extent of his possession to- the premises in controversy.- — Turnley v. Hanna, 82 Ala. 143; Bohannon v. State, 73 Ala. 47; Brady v. Huff, 75 Ala. 80. There is nothing in the point made in brief of defendant’s counsel, that the deed Avas not admissible because it did not contain all the land claimed in the complaint. It was good to show that the possession extended to so much of the land as it purports to convey.

The motion to exclude the statement of the witness, Judge Austin, “that Boltz made statements, to witness, that made him wish to visit the family down there,” should have been granted. It is a well established rule, that Avituesses are not permitted to- testify to their motives, wishes, or mental status. — McRae v. State, (Ala.) 38 South, —; McCormick v. Joseph, 77 Ala. 236.

If it was true that the defendants attorned to the plaintiff Avithin three years previous to the bringing oE the suit, the statute of limitation was not available to them. — Barefoot v. Wall, 108 Ala. 327; Nicrosi v. Phillipi, 91 Ala. 299.

For the errors heretofore pointed out the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.

McClellan, C. J., Tyson and Simpson, J. J., concurring.