93 Ala. 120 | Ala. | 1890
— In order to establish their title to the land, to recover which appellants bring the statutory real action,, they introduced in evidence (1) a quit-claim deed made by the Bank of Mobile, May 3, 1859, conveying to James M. Meaher and Timothy Meaher “five undivided twelve parts’ of a tract of land containing about thirteen hundred acres, which includes the land described in the complaint; (2) a conveyance executed by Timothy Meaher of this and a large quantity of other lands, to John Dahm, December 2, 1889, under an order of the Chancery Court; (3) a deed from Dahm, August 20, 1890, conveying an undivided half interest in all the lands included in the conveyance of Timothy Meaher, to James K. and Augustine Meaher; and (4) a conveyance by them, vesting in Timothy-Meaher an estate for and during 1ns natural life in their half interest. And in order to establish their right- of possession, plaintiffs introduced in evidence (1) a written lease of the land sued for by J. M. and T. Meaher to defendants, for the term of five years from August 1, 1883, at an annual rental of one hundred and fifty dollars, payable in quarterly installments, with the right or privilege of renewal for another term of five years; also, (2) a renewal or extension, in accordance with this provision of the contract of lease, for another term of five years, commencing August 1. 1888; also, (3) a deed made by James K. Glennon, May 17, 1890, conveying to defendants an undivided one-third in
James Mealier having died before the expiration of the original term, Timothy Mealier, who had been appointed his administrator, and was the surviving co-tenant, made the renewal of the lease. The renewal having been signed by his agent, who was not shown to have been authorized in writing, plaintiffs contend, that it is void under the statute of frauds. This contention is not supported by the facts. It appears' that defendants, having been put in possession under the original lease, continued in possession under the renewal, and have paid the quarterly installments of rent to November 1, 1890. Possession and payment of the installments withdraw the lease from the influence and operation of the statute of frauds, bringing it within the express terms of the exception to the statute. — Code, § 1732; Shakespeare v. Alba, 76 Ala. 357. They further contend, that Timothy Mealier, as administrator, had no authority to extend the lease, so far as concerned James M. Meaher’s interest, for a period exceeding the term of his administration, and that it was terminated when his entire real estate was sold under the decree of the Chancery Court. Without conceding the correctness of the proposition, it is a sufficient answer, that the administration is not shown to have been yet settled; and if it had, the administrator, in renewing the lease, simply performed a covenant made by his intestate in his life-time.
They also insist, that, if the lease be valid, defendants, by purchasing and accepting the conveyance from Glennon of a ■one-third interest in the land, and filing the bill in chancery, forfeited the lease. By the stringent rules of the common law, which have their origin in the military nature of the feudal tenure, almost any act of the tenant, inconsistent with his fealty to the landlord, worked a forfeiture of his term. While the relation of landlord and tenant is preserved in its integrity, these rules have been greatly modified by statutes, and some of the methods by which a tenant forfeited his term at common law are inapplicable under our-institutions, and have not obtained in this country. Says Chancellor Kent: “But these forfeitures are very much reduced in this country, by the disuse or abolition of fines and feoffments, and by the statute provision, that no conveyance by a tenant for life or years, of a greater estate than he could lawfully convey, should'-work a forfeiture, or be construed to pass any greater interest.”
Generally, attornment, 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 constitute a ground of forfeiture. What acts amount to a disclaimer, is often a question of nicety, and difficult of determination, as to which the authorities are not in accord. It has been held, that a tenant for life does not forfeit his estate by accepting a deed for the fee from the person whose title is hostile to that of the reversioner. — Rossel v. Jarvis, 15 Wis. 571. But the weight of authority seems to be, that a purchase by a tenant of an adverse title, and claiming under it, is regarded as a forfeiture of his term.— Williamson v. Watkins, 3 Pet. 43. Probably the most, certain general test of the sufficiency of a disclaimer to create a forfeiture is, whether the tenant’s holding is thereby rendered so adverse as to put the statute of limitations in operation in his favor, whereby his adverse possession would ripen into a fee by the lapse of time, — a direct repudiation of the relation of landlord and tenant, and its obligations.
When tried by this test, do the acts and expressions of defendants amount to such disclaimer and repudiation? The deed of the Bank of Mobile, the source of plaintills’ title, conveying only an undivided five-twelfths interest, constituted the grantees tenants in common with the persons owning the other interests; and though there is evidence that the Meahers used and occupied the land from 1870 to the time of making the lease, claiming it against all the world, it also shows that they claimed under that deed, thus naming the quantum of interest thereby conveyed the extent of the right or ownership claimed by them. Exclusive possession by one co-tenant, under a deed not purporting to convey the entire interest, and
But, independent of this, it appears that plaintiffs accepted the quarterly installment of rent maturing November 1, 1890, after the filing of the bill, giving the notice to quit, and receiving defendant’s reply thereto. This was a recognition of the lease, the admission of an existing tenancy, which precludes plaintiffs from insisting upon the forfeiture. The rule is well settled, that the landlord’s acceptance of rent accruing after a forfeiture, with knowledge thereof, operai es a waiver
The court did not err in excluding the letter written by plaintiffs, November 12, 1890, to defendants. A party can not, by declarations, after the acceptance of the rent, explain his intention in accepting it.
Affirmed.