101 Ala. 111 | Ala. | 1893
This case was defended below, and the rulings of the trial court are assigned as erroneous here, mainly upon the theory that a landlord can not’ maintain trover "for timber wrongfully cut off the demised premises, sawn into fire-wood and sold by the tenant, until after the lease has been forfeited, or the tenancy has otherwise been terminated, and the landlord
The cases of Cooper v. Watson, 73 Ala. 252, and Beatty v. Brown, 76 Ala. 267, are clearly distinguishable from this one in that the defendants in those cases held adversely to the plaintiffs — a fact which is, as we have seen, of controlling importance — and the recoveries sought involved trials of the conflicting claims of title, which could not be adjudicated in these transitory actions. The case of Little v. Allison, 93 Ala. 150, 9 So. Rep. 388, did not involve the relation of landlord and tenant, and, perhaps,. what is there said should be limited by a consideration of the fact, which does not appear as prominently in the report of the case and in the opinion as it should, that the wrong-doer was a mere naked trespasser, who set up no. claim to the title or possession of the land against the trustees — though not a tenant of the plaintiffs, he still was not in the adverse possession of the premises'.'
The facts that plaintiff claimed a forfeiture of the lease existing at the time of the wrongful severance of the timber by the defendant, or of alease subsequently made of the premises covering succeeding years/ because of such severance, or upon any other ground ; that defendant denied the forfeiture, and put plaintiff to her action of ejectment to recover the land before the last lease had expired, which action was pending and being defended by the tenant when this cause was tried, or when it was instituted, were attempted to be availed of by the dedendant on the trial below of this case, as showing that defendant held the land adversely to plaintiff. These facts had no such tendency. They showed, indeed, that the defendant claimed the right to continue in possession, but they also showed that he based this right on his lease from the plaintiff — that he asserted no possession or right of possession except as plaintiff's tenant, and in full recogmtion of plaintiff's tit1 e. If either party was injured by the exclusion of this evidence, or by the refusal of the court to allow the defendant to file in this cause a
Of course, it was competent for plaintiff to introduce the lease which was current at the time this suit was brought, as showing that defendant’s possession was under and not adverse to her title ; and we can conceive of no ground for the exclusion of any part of that instrument on any idea that some of its provisions might possibly be looked to by the jury to determine what were the stipulations of a previous lease in a certain particular. Moreover, the provision which was singled out by a special motion to exclude tended to contradict the oral testimony of the defendant as to what was said in certain conversations between him and the plaintiff and her husband, acting, it is insisted by defendant, as her agent; and for this reason alone the appellant can take nothing on account of the ruling in question. What we have said covers and disposes adversely to appellant of all the rulings of the court in respect of the pleadings, on the admission of testimony, and upon charges requested and given or refused, except rulings relating to the testimony, by deposition, of the plaintiff herself, and two or three charges to be presently considered.
It is to be observed with reference to the pleadings, that so far as this opinion bears upon questions intended to be raised in that connection, it is merely incidental to the disposition of the same questions arising on the evidence and instructions to the jury; for the record of the trial court does not show that any pleas were filed, or that any demurrers to pleas were interposed, or that any ruling was made as to the sufficiency of pleas, or indeed any thing but the complaint, certain demurrers to the complaint, which do not appear from the record to have been ruled upon, and a final judgment on verdict for the plaintiff: The bill of exceptions, which is no part of the record below, recites certain pleas, demurrers and judgments thereon, but, as has been many times decided here, such judgments can not be presented for the considera
The refusal of the court to exclude the deposition of . Mrs. Rogers may be rested on the ground, among others, perhaps, that the motion to that end went to the whole deposition, and was not made before the trial was entered upon, the ground of the objection not appearing to have transpired or become known to defendant only after commencement of the trial. Code, § 2810 ; Moody v. A. G. S. R. R. Co., 99 Ala. 553.
If that part'of the testimony of Mrs. Rogers-which was objected to because not responsive to the cross-interrogatories under which it was given, was in fact not responsive, the defendant was not injured by its admission, since it was competent evidence in the cause, and but the repetition of facts to which the witness had deposed in response to interrogatories in chief.
The measure of damages in this case was the value of the wood at the time of the conversion of the trees into cord-wood, with interest to the time of trial, as declared by the court in its instructions to the jury. — 2 Brick. Dig., 488, §§ 67, et seq.; 3 Brick. Dig., 780, §§ 29, et seq.
The court correctly charged that the burden of showing that plaintiff had released this cause of action to defendant was upon the latter. — 3. Brick. Dig., 433, § 388.
Plaintiff’s acceptance of rent from the defendant, for a period subsequent to the severance and conversion of the trees, and the execution by her of a lease for a subsequent time, may have amounted to a waiver of the forfeiture of the lease current at the time thereof ; but these facts do not operate a release of defendant’s liability for the value of cord-wood made from the trees wrongfully severed by the defendant. The cause of action laid in this case is not dependent upon the waiver vel non of any forfeiture of the lease. Charges 8 and 9 requested for defendant were, therefore, properly refused.
Charge 12 of defendant’s series was, to say the least, invasive of the province of the jury. If they had a right to measure the damages by reference to the facts hypothesized in that charge, it was a matter within their discretion to do so or not, and the court properly refused to require them to do so.
We will not extend this opinion by discussing the ap
The judgment of the circuit court is affirmed.