Coffey v. Hunt

75 Ala. 236 | Ala. | 1883

BEICKELL, C. J.

1. There can be no proposition or principle of law more firmly settled, than that rent is an incident to the reversion, passing with it to the assignee. Without an express reservation, an assignment or transfer of the reversion, when rent is accruing and to fall due at a future day, carries with it the right to demand and receive such rent as it falls due and payable. — Taylor’s Land. & Ten. § 448 ; English v. Key, 39 Ala. 113 ; Tubb v. Fort, 58 Ala. 277. Whether the transfer or assignment of the reversion is the voluntary act of the lessor, or involuntary, by act and operation of law, as in the event of a judicial sale of the reversion, or of a sale by the sheriff under execution at law, which is quasi-judicial, makes no difference in the application of the principle.—English v. Key, supra; Bank v. Wise, 3 Watts, 394. And it applies equally, whether there is an absolute conveyance of the reversion, or whether the conveyance is by way of mortgage. — Birch v. Wright, 1 D. & East, 3S3; Burden v. Thayer, 3 Metc. 76 ; Kimball v. Pike, 18 N. H. 419.

In this State the law is settled, that a.mortgage in fee, as appears to be the mortgage executed by the lessor, Martin, to the defendants, Timberlake, Coffey and Helton, operates as a present, immediate conveyance and transfer of all the right, title, interest and estate of the mortgagor in and to the premises mortgaged. If there is not a reservation to the mortgagor, in the conveyance, of possession, or of the right to take and enjoy the rents and profits, until default in the performance of the condition (and of the existence of such reservation there is no averment in the bill), the mortgagee has the present, immediate right of entry and possession, and may, at will, eject the mortgagor, or tenants entering under him subsequent to the mortgage.—Duval v. McLoskey, 1 Ala. 737 ; Welsh v. Phillips, 54 Ala. 309.

The mortgage operating as. an immediate transfer and conveyance of all the estate of the mortgagor, though its purpose was the security of debts falling due at a future day, included a present right of entry and possession, in the absence of a stipulation that the mortgagor should remain in possession, or should enjoy the rents and profits, until condition broken, and carried with it, necessarily, the rents subsequently accruing. The assignment of the rent to the complainant, subsequent in point of time to the mortgage, was subordinate to, and can not prevail against the prior grant of the reversion.—Kimball v. Pike, supra ; Otis v. McMillan, 70 Ala. 46. The mortgage was a conveyance of, and binding upon the whole realty, of which the rent accuring was a part. It was optional with the mortgagees whether they would take such rent or not; as it is always matter of election with a mortgagee whether he will enter and take possession, before or after condition broken. It is with him matter of election, because, if he enters, or if he demands and receives rents, he is subject to account; and he may prefer standing upon the security of the mortgage, rather than to incumber himself with a liability to account for rents and profits. Therefore it is that, ordinarily, before condition broken, the mortgagor is left in possession, and suffered to enjoy rents subsequently accruing. But the right of the mortgagee to enter, or to demand and receive from a tenant having a prior lease, whose possession he can not disturb, rents subsequently accruing, remains optional, and he may exercise it cum onere.—Burden v. Thayer, supra ; Newall v. Wright, 3 Mass. 138. It is not of consequence whether the mortgagees claimed the rent as purchasers under the prior mortgage to Hurt, or in their right as mortgagees. In the latter capacity they had the right to demand and receive the rent, superior to the right asserted by the complainant, and payment to them extinguished the rent and the liability of the tenant.—Mansony v. U. S. Bank, 4 Ala. 735 ; Chambers v. Mauldin, Ib. 477 ; Coker v. Pearsall, 6 Ala. 542. The bill, consequently, upon its face, discloses a want of right and title in the complainant to the relief prayed, and the motion to dismiss ought to have been sustained.

2. When the right to recover rent is legal, not equitable, and there is an adequate remedy at law, a court of equity will not take jurisdiction to decree its recovery. The rule then applies, that a court of equity will not intervene for the enforcement of legal rights, when the remedy at law is clear, adequate and complete. But, if the remedy at lawis doubtful or inadequate, or there is a peculiar equity, the court will take jurisdiction. Tubb v. Fort, 58 Ala. 277. In Abraham v. Hall, 59 Ala. 386, the tenant died, rendering it legally impossible for the landlord, by the pursuit- of legal remedies, to enforce the statutory lien upon the crops raised upon the rented premises. As the lien is an incident of the tenancy, and there was a want of legal remedy for its enforcement, it was held that, in the exercise of its general jurisdiction to enforce liens, or trusts for the payment of debts, a court of equity could interfere, follow the crops into the hands of all others than a bona fide purchaser without notice, and enforce and render availing the lien. In Westmoreland v. Foster, 60 Ala. 448, there was an assignment of the rent, or, rather, of the promissory notes given for its payment, but there W'as not then a statute of force giving the assignee a remedy at law to enforce the statutory lien upon the crops grown on the rented premises. As there was a lien, an incident of the tenancy, a security for the payment of the rent, and a want of legal remedy for its enforcement, it was held, a court of equity had jurisdiction to interfere for its enforcement, original and inherent, not affected by subsequent legislation giving the assignee a remedy at law. In each case, there was a want of remedy at law, and the lien, the security for the payment of the rent, would have been unavailing, without Lachéis on the part of the party having the right, if the court had not intervened. But there is no authority for the intervention of the court, when there is a plain, adequate remedy at law, by the pursuit of which the party complaining can obtain all the relief claimed, or to which he is of right entitled. This principle must not, however, be regarded as infringing upon the general doctrine, that the original, inherent jurisdiction of a court of equity is not affected by statutes conferring a like jurisdiction on courts of law. The right of an assignee of rent to resort to equity for the enforcement of the statutory lieu is not affected, because the statute now gives him a legal remedy. That question is not, however, now presented. If the complainant had a right to the rent, if it had been severed from the reversion, and had passed to him by the assignment, he would have a plain, unembarrassed remedy at law to recover of the defendants for the conversion of the cotton which was subject to the lien given by the statute to secure the .payment of the rent. The defendants having, as it is averred in the bill, taken and converted the cotton, with notice of the lien, thereby rendering unavailing remedies for its enforcement, a special action on the case would be maintainable against, them ; and in that action, the recovery of the complainant, would be precisely co-extensive with that which he now claims, the value of the cotton, with interest from the conversion.—Hussey v. Peebles, 53 Ala. 432 ; Hudson v. Vaughan, 57 Ala. 609 ; Lavender v. Hall, 60 Ala. 214; Lomax v. LeGrand, Ib. 537; Boggs v. Price, 64 Ala. 514. Or if the defendants had converted the cotton into money, or its equivalent, an action of assumpsit for money had and received would lie against them.—Thompson v. Merriman, 15 Ala. 166 ; Westmoreland v. Foster, supra. These plain and adequate remedies at law existing, there is no-necessity or reason for the peculiar remedial process or functions of a court of equity ; and if the bill were entertained, the conrt would and could act only as a court of law, administering no other relief than is obtainable in such court by the pursuit of the ordinary remedies. The demurrer to the bill was well taken, and ought tq have been sustained. The decree is reversed, and the cause remanded for further proceedings in conformity to this opinion.