Hunnicutt v. Head

60 So. 831 | Ala. | 1912

McCLELLAN, J.

Statutory ejectment. The report of the case on former appeal is to be found in 172 Ala. 48, 55 South. 161.

Upon further consideration, on rehearing, the court finds that what purports to be a description of the lands in suit, in the complaint, and in the verdict and judgment is wholly indefinite and insufficient. If speculation may be indulged, as aided by the description in the deed from Neal to plaintiff, the error in complaint, verdict, and judgment arises from the improper use of “west” for “east” in giving the direction for the north line. As set out in the pleading and in the verdict and judgment, no certain area is described. If we should assume to read “west,” “east,” in definition of the last (east) line of an area thus made a parallelogram, the result would be to define an area not described in the instrument upon which plaintiff relies for his title. The general charge for the defendant was, therefore, erroneously refused to him; and, in consequence, of course, the giving of the affirmative charge for the plaintiff was error.

The written agreement between Hunnicutt and Neal, and its exhibits, of date November 8, 1907, were without bearing upon the issues in this case. It was so ruled on former appeal, and no sufficient reason appears for a departure therefrom.

It is now insisted for appellant that this written agreement, was rendered relevant and admissible because of an anterior verbal agreement between Neal and the Hunnicutt-Neal Lumber Company, whereby the company was to have the use of the lot for the purposes of the enterprise, and that the land and improvements (made by the company thereon) should be acquired by the stockholder continuing the business if at any time either member of the corporation should sell out or dispose of his interest in the corporation. An element of support of this theory is said for appellant to be found in the clause of the Neal-Hunnicutt deed: “The purpose of this conveyance being a conveyance by the grantors of their entire interest in real estate and timber rights in Bibb county, Alabama, to the grantee, without warranty of title.” As construed on former appeal, neither the written agreement nor the Neal-Hunnicutt deed affected the lot in suit — the individual property of Neal. If it should be assumed that the separate verbal agreement mentioned was in fact made, we are unable to see how the written agreement itself, without allusion or reference to that verbal agreement, could be of evidential effect or influence in any degree. Nor can we discover the remotest connection between the quoted words of the Neal-Hunnicutt deed and the stated verbal agreement. There was no error in declining to admit the written agreement and its exhibits.

It appears from the testimony adduced by both litigants that about the year 1898 Neal, who owned the land, made a verbal engagement with the HunnicuttNeal Lumber Company, of which he was a stockholder, wherein it was agreed, that the company should have the occupancy and use of the land in suit for the purposes of the enterprise, viz., the operation of the sawmill business at Vick, Ala.; that the company should erect certain structures thereon for service in the conduct of that business; and that upon the termination of the “lease” Neal should have the structures so erected'as the consideration for the use of his land as stated. When the “lease” should be terminated was a matter of dispute, Neal, plaintiff’s grantor, testifying that it should determine when the owners of the corporation, viz:, Hunnicutt and Neal, should Avind up that business, which it appears from his testimony, contemplated a purchase of some sort by one of them of the interest of the other in that business — a process which Avas effected by the written agreement set out in the report of the former appeal. — 172 Ala. 48, 55 South. 161. On the other, Hunnicutt’s view of the verbal “lease’s” termination Avas, to summarily state it, that it would not occur while the.corporation engaged in the sawmill business at Vick, Ala., and that the contingency had not AAihen the suit was instituted occurred to determine the right of the corporation to the possession of the premises under the verbal agreement, the buildings having-been promptly erected and the possession then (1898) assumed — a possession that had not been surrendered.

The court is of the opinion that the verbal agreement, in reference to which both Neal and defendant (appellant) testified, created a tenancy at will between Neal as landlord and the Hunnicutt-Neal Lumber Company or the Hunnicutt Lumber Company, a corporation, as tenant. — 24 Cyc. pp. 1036-1040; Mhoon v. Drizzle, 14 N. C. 414; The Bishop of Bath’s Case, 3 Coke, Eng. Rep. (reprint) p. 303. This relation, together with the right to possession thereunder, Avas determinable on notice at the election of either party thereto.— Authorities, supra. But the character of this right to possession was such that it could not be assigned by the corporation to another. — 24 Cyc. p. 1037, and authorities cited in note 62.

In consequence J. W. Hunnicutt, the individual who alone is sued or defends in this action, cannot avail of or justify his possession of premises affected by the verbal agreement in question, for that he was without individual interest in or right under it. No relation of tenancy having existed on that account between Neal or Neal’s grantee (plaintiff) and Hunnicutt individually, it was not, of course, necessary that any demand should have been made on Hunnicutt.

The rehearing is granted, the judgment of affirmance is set aside, and a judgment of reversal is entered. The cause is remanded.

Reversed and remanded.

All the Justices concur. Dowdell, C. J., not sitting.