58 Ala. 109 | Ala. | 1877
Tbe purchaser of lands sold for taxes, has no other remedy at common law to recover possession, than an action of ejectment. — Blackwell on Tax Titles, 576; Cooley on Taxation, 371. Tbe charter of tbe city of Selma declares, that in tbe event of tbe failure or refusal of tbe person in possession, to surrender to a purchaser at a sale for tbe payment of city taxes, such person “shall be guilty of an unlawful detainer, and the purchaser may institute suit before any justice of tbe peace in tbe city of Selma, for tbe recovery of tbe possession of said premises, and damages for tbe detention thereof. From the judgment of such justice, an appeal may be taken to tbe Circuit Court of Dallas county, as in other cases of unlawful detainer.” — Pampb. Acts, 1874-5, 375, § 47. We do not now propose to express any opinion as to tbe validity of this enactment. Tbe necessities of tbe present case are satisfied, when we say that it must not be construed as subjecting tbe proceeding it authorizes to the same rules which regulate and control tbe action of unlawful detainer between landlord and tenant, or when simply tbe right of possession is involved. Then, posses
Tbe proceeding by tbe purchaser at tbe tax sale, is founded on tbe theory that be has acquired title by bis purchase, and the title draws to it tbe possession. There is no prior possession on which be can rely — nor can it be asserted that the party in possession derived it from him, or by an entry under one deriving it from him. Unless tbe party proceeded against is deprived of all right of defense, or bis right of defense is narrowed and circumscribed so that generally it would be valueless, there must, of necessity, be an inquiry into tbe estate, or merits of tbe title. Tbe proceeding tbe statute authorizes, has, necessarily, more of tbe elements, and bears a greater analogy to an action of ejectment, or tbe statutory real action, than to an action of unlawful detainer proper. A legislative declaration that tbe party withholding tbe possession is guilty of an unlawful detainer, and that suit for tbe recovery of possession, and damages for tbe detention, may be commenced before a justice of tbe peace, cannot be so construed as in effect to disseize a man of bis freehold, and convert bis estate into a mere right of action.
Tbe statute (Code of 1876, § 2955) requires that when a real action is against a tenant, tbe landlord must, on motion, be made a party defendant. Whether this statute is not a mere affirmance of tbe common law, or confers on tbe landlord a new right, is not important. — Arent v. Read, 2 Port. 480; Lawson v. Orear, 4 Ala. 156; Tyler on Ejectment, 442, et seq. Tbe existence of such a rule is indispensable to the protection of tbe party really interested to defend tbe action against tbe negligence or the fraud or collusion of tbe tenant in possession. The statute in promotion of this, its manifest purpose, has been liberally construed. The technical relation of landlord and tenant has not been deemed indispensable to its operation. Whoever claims title, consistent with tbe possession of tbe occupier, and as against him, has an immediate right of entry, may loe allowed to defend as landlord. — Thompson v. Ives, 11 Ala. 239; Falkner v. Jones, 12 Ala. 165. An extension of tbe statute to this proceeding, which, by whatever name it may be called, is in fact an action against the tenant in possession, in which tbe plaintiff can recover only on tbe strength of bis title, and in which tbe title is, of necessity, involved, is not unwarranted. It is necessary for tbe protection of the landlord against tbe un
Tbe landlord of the tenants in possession had tbe right to intervene and prosecute an appeal from tbe judgment of tbe justice of tbe peace. She is not a stranger, intermeddling in a suit in which she is without interest. The bonds executed by her, may not be statutory bonds, on which judgments may be rendered against her and her sureties summarily. They are valid common law obligations, and if tbe petitioner deems it necessary for bis protection, on a proper application to tbe Circuit Court, tbe landlord may be formally substituted as tbe party defendant, and tbe party appellant, and required to execute sufficient statutory bonds. It is tbe mandate of tbe statute, which but follows tbe former decisions of tbis court, that no appeal or c&Hiorari for tbe revision of judgments of justices of tbe peace must be dismissed for any defect in tbe bond, if tbe party is willing to execute a sufficient bond or undertaking. — Code of 1876, § 3126.
Tbe Circuit Court properly refused tbe motion of tbe petitioner to strike tbe cause from tbe docket, and tbe application for mandamus is denied at bis costs.