Giddens v. Bolling

92 Ala. 586 | Ala. | 1890

COLEMAN, J.

Appellee Bolling sued the appellant in an action of unlawful detainer before a justice of the peace, and recovered a judgment for the land. The case was appealed to the Circuit Court. On the trial in the Circuit Court, certain exceptions were reserved to the ruling of the court on the admission of testimony, to the charges given, and the refusal to charge as requested. The. note given by defendant to plaintiff for the rent of the land, and also the notice to defendant to vacate the premises, appear in the statement of the facts of the case. There are three assignments of error; the first, for refusing to exclude evidence on motion of defendant; second, in the charges given; and, third, for refusing to charge as requested.

The first motion was to exclude ,as evidence the written-demand to vacate the premises. No reason is assigned to sustain the motion, and we presume none could be. The objection, also, is too general.

The next motion was to exclude the “foregoing evidence,” without further specifying the objectionable evidence, or assigning any reason for the motion. Such an exception is. general, and may be overruled. — Hayes v. Wood, 72 Ala. 92; 3 Brick. Dig. p. 443, §§ 567-570. It can not be maintained that a part of the “foregoing evidence,” if not all of it, was not legal evidence, and the exception included all the evidence,, which had been introduced, including the note given for the rent and the written demand to vacate.— Warren v. Wagner, 75 Ala. 188; Fonville v. State, 91 Ala. 39.

Plaintiff introduced one Huey, who further testified that six hundred dollars a year was a fair rental value pending the appeal. The objection was taken to this evidence as a whole. The defendant having executed a supersedeas bond on his appeal from the justice’s court, it was competent to prove on the trial in the Circuit Court the value of the rent pending the appeal. — Code, § 3411. A general objection to evidence, a part of which is legal, may be overruled. — Authorities supra.

It was competent to prove by parol the lands known as the “Brier Hill Plantation,” so designated in the rent note and in the written notice' to vacate, as the “Brier Hill Place,” &c.— Vann v. Lunsford, 91 Ala. 576; Guilmartin v. Wood, 76 Ala. 204; Chambers v. Ringstaff, 69 Ala. 140.

The defendant, among other things, testified “that he had never rented any property from the said R. E. Bolling; that the note was given with the understanding that it was not to be paid, but was to go that way to keep his creditors off.” This testimony was admitted without objection. — 24 Ala. 329 ; 31 Ala. 108; 65 Ala. 390. However overwhelming the court may consider the evidence on either side, when there is evidence tending to establish a contrary conclusion, and which, if believe^ by the jury, would defeat a recovery, the court is not authorized to give the general charge. — Carter v. Shorter, 7 Ala. 254; Seals v. Edmondson, 73 Ala. 296; 3 Brick. Dig. p. 110.

The trial being on an appeal from a justice’s court, a judgment could not be rendered on appeal in the Circuit Court for an amount for the annual rent which exceeded the jurisdiction of the justice’s court. — Lykes v. Schwarz, 91 Ala. 461. Plaintiff had the right to release so much of the judgment as was for the annual rent before the adjournment of the court; ■and if he did so, this error would have been without injury. In an action for unlawful detainer, the recovery of rent is a mere incident to the recovery of possession of the land. If the amount of rent exceeds the amount of the jurisdiction of the justice’s court, unless the plaintiff is willing and does release all in excess of the justice’s jurisdiction, the rent can only be recovered in a separate action, in a court having jurisdiction of the amount. The rent here referred to is that which may be claimed as due at the time of the trial of the unlawful detainer suit, and not to the rent “pending the appeal.” For the rent pending the appeal express statutory provision is made; and on the trial of the appeal, the appellate court, having jurisdiction of the amount of rent pending the appeal, may render judgment tor such rent. — Code, § 3411. This section provides that “judgment may, also, be rendered ■against the defendant and his sureties on his supersedeas bond, for the value of the rent of the premises pending the .appeal.” The execution of the supersedeas bond secures to such plaintiffs, in such appeal cases, full indemnity and redress without the delay and expense of a new and independent suit. — Robbins v. Battle House, 74 Ala. 506.

In the case of Beck v. Glenn, 69 Ala. 125, the conclusion ■of the court was correct on the facts proven in the trial court. The judgment of the trial court was against the defendant and his sureties on the supersedeas bond for $150.00, being “the value of the use of the premises pending the appeal.” The Supreme Court, in the opinion, affirmed the judgment on the ground that it was authorized under section 3709 of Code of 3876, 3391 of Code of 1886; whereas, the affirmance should have been under section 3411 of the present Code, 3712-3713: of the Code of 1876, and not section 3709 of the Code of 1876. The proper construction of these various sections have been considered and construed in the case of Lykes v. Schwarz, supra, decided at the present term.

Although the action is possessory, and grows out of the relation of landlord and tenant, a re-renting, or sub-renting of apart of the premises, or any collusion by which other parties are placed in possession of a part of the premises, will not defeat the action. — Snoddy v. Watt, 9 Ala. 609; McGonegal v. Walker, 23 Ala. 368. If third parties, asserting a right in themselves, and independently of the- landlord, or his tenant, take possession, the action of unlawful detainer is not the proper action in such case, but it would prevail against the tenant himself, and a judgment could be rendered against him for that portion of the land unlawfully detained by him.

We do not intend to change the rule, that if illegal evidence is admitted without objection, it is before the jury for consideration ; but we hold that this principle does not apply, when the defence attempted to be established by- such evidence is one that the law does not permit. A tenant can not deny the title of his landlord. Neither will one- who, to defraud his creditors, enters into a fraudulent transaction, be allowed to profit by it.

Under this view of the law, the court did not err in giving the general charge for the plaintiff.

Affirmed.