28 Ala. 660 | Ala. | 1856
In a proceeding for the recovery of rent, the tenant is estopped from denying the landlord’s title, when ho has enjoyed the undisturbed possession of the land during the period of the lease. — Perkins v. Governor, Minor, 358; Hanks v. Hinson & Patterson, 4 Porter, 509; Terry v. Ferguson, adm’r, 8 ib. 502; Tillotson v. Kennedy, 5 Ala. R. 407; Shelton v. Eslava, 6 ib. 233; Smith v. Mundy, 18 ib. 185; Rickets v. Garrett, 11 ib. 811.
The general principle above stated, is not disputed in this case; but it is contended that there are features in it, which relieve it from an application of that principle. In the inquiry as to the applicability of the doctrine of estoppel to the relation which existed between appellant and appellee, we purposely avoid the question, whether the appellant was a tenant at will; because, conceding that he was, the judgment of the court below must be reversed. We shall, therefore, proceed to consider the case upon the hypothesis, that the appellant was the tenant at will of Michael Cook, sr., at the time when he rented the land to appellee. Upon the adoption of that hypothesis, there are two questions which arise: first, whether or not a tenant at will can make a valid lease of the land, which is the subject of the tenancy at will; secondly, whether or not the facts in this case, to which the charges must be referred, terminated the tenancy at will pending the lease to appellee, and absolved the appellee from the payment of rent.
The general doctrine is, that a tenancy at will is not assignable, and that the making of a lease terminates the tenancy at will, and converts the tenant at will into a dis-seizor; but this rule must be understood with this qualification, that the making of a lease by the tenant at will has such an effect at the election only of the owner of the land. No other person than the owner has the right to elect to regard the lease of the land, which is the subject of the tenancy at will, as a termination of the tenancy. — 1 Thomas’ Coke, 1st
From the principle above stated, and the authorities cited, we conclude, that the fact of the appellant being a tenant at will at the time when he leased the land, which was the subject of the tenancy at will, affords no argument available to the appellee, why he should not pay the rent, which he contracted to pay upon becoming the tenant of him who had the estate at will.
A tenancy at will is determinable at the will of the lessor; and one mode of determining it is, by the lessor’s entering upon the land, and there by words declaring it an end. But the better opinion is, that such words do not terminate the estate at will, until the lessee has notice. — 1 Thomas’ Coke, 1st Am. ed., top page 746; 4 Kent’s Com. 114; Rising v. Stannard, 17 Mass. 286; Philips v. Covert, 7 Johns. 1. The condition of estates at will has been meliorated, so far as to give the tenant a right to notice to quit. The words spoken by Michael Cook, sr., when he entered rrpon the land, as proved by the witness Scott, even though they might otherwise be sufficient, (of which we are not at all certain,) could not.have the effect of extinguishing the tenancy at will, because the appellant had no notice of them.
If the agent receives money, by authority of his principal, which belongs to another, the principal is liable, no matter whether the agent paid over the money to him or not. The maxim of the law is, “ qui facit per alium, facit per se.” It would be unjust, and inconsistent with the analogies of the law, to permit a principal, whose agent had by his authority received money, to excuse himself from responsibility, by saying that he had no right to the money. It would be to allow him to take advantage of his own wrong. The cases cited by the appellant’s counsel are to the effect, that the agent can not absolve himself from responsibility, where the authority was wrongfully conferred upon him by the principal. — Colvin v. Holbrook, 2 Comstock, 126; Costigan v. Newland, 12 Barbour’s S. C. Rep. 456; Hearsey v. Pruyn, 7 John. 182. Éut the fact that the agent may be liable, does not exempt the principal from liability. The act of the
Several of the charges given, and refusals to charge, and rulings as to the admission of evidence, are in conflict with this opinion; and therefore the judgment of the court below is reversed, and the cause remanded.
