50 So. 995 | Ala. | 1909
The plaintiff, a woman, sues defendants in trespass quare clausum fregit vi et armis as to lands described in the complaint. The defendant R. E. Brown is sued jointly with the other defendants, and is sued individually and as administrator.
The trespass as alleged and proved was committed by the said R. E. Brown et al. after the death of the intestate of the said Brown. As for such trespass, the personal representative is liable individually, but not in his representative capacity. The estate of a deceased person cannot be held liable for the torts of the personal representative. The separate demurrer of R. E. Brown as administrator should have been sustained to the complaint. It stated no cause of action against him in that capacity. The complaint should have been amended in this respect. — Shorter v. Urquhart, 28 Ala. 360; Daily’s Adm’r v. Daily, 66 Ala. 266; Spotswood v. Bentley, 132 Ala. 266, 31 South. 445.
The plaintiff in this case could not recover damages as rent of the lands trespassed upon. It is shown that she left the premises at the request of a third party,
While the possession of one tenant in common is the possession of all,,this is not available as a defense.for trespass vi et armis committed by one tenant in common against the possession and person of another, who is at the time in the actual possession, claiming the entire property in his sole right, and is disputing the title of his co-tenant. If the defendants were tenants in common with the plaintiff of the lands in question (as they claim they were), they should have resorted to the law to have declared and enforced their rights as such tenants in common.' They should not have attempted to. assert and enforce their rights by force and contrary to law, as all the evidence shows they did. If the relation of tenant in common as to the lands had been undisputed, that fact could not- justify the torts alleged and proven in this case against those defendants. A sole owner, much less’ a tenant in common, will not be permitted thus with force to right a wrong by committing a trespass, though the other party, wrongfully withholds the possession of the land or chattel from its true owner. — Herndon v. Bartlett, 4 Port. 481; Folmar & Sons v. Copeland, 57 Ala. 588; Finch v. Alston, 2 Stew. & P. 83, 23 Am. Dec. 299.
The evidence in this case tends to show an unwarranted and unlawful, if not malicious, trespass, and was sufficient to authorize the jury to award vindictive damages. It conclusively appears that they did award such damages; and we are not prepared to say that such award, as to either character or amount, was so unwarranted as to authorize the trial court in setting
The judgment is reversed and the cause remanded.
