Jonsen v. Nabring

50 Ala. 392 | Ala. | 1874

PETERS, C. J.

The court below ought not to have entertained any demurrer in that court. In such actions as this, it was long ago settled in this court, that no objections will be allowed in the appellate court to the complaint, in a proceeding for an unlawful detainer, which were not made before the justice, if the complaint is not so defective in substance, that no judgment can be rendered for any particular premises. Hilliard v. Carr Ketchum, 6 Ala. 557; Snoddy v. Watt, 9 Ala. 609. Then, only the demurrer interposed on the hearing before the justice of the peace can be considered in the circuit court, or reviewed in this court. But that was not insisted on in the circuit court. It was, therefore, abandoned, and the demurrer will not be reviewed in this court, as it was not made in the justice’s court. 6 Ala. 557 ; 9 Ala. 609.

2. But the causes of demurrer relied on before the justice were not sufficient to overturn the complaint. The pleadings in this action should be made up before the justice of the peace. In that court, the statutory formalities of “ a plea of tender ” could not be complied with. The Code declares, that “ a plea of tender of money, or other thing in action, must be accompanied by a delivery of the money, or such thing in action, to the clerk of the court.” Rev. Code, § 2648. It will be seen by reference to chapter 1, title 3, part 3, of the Revised Code, that this rule of pleading has no reference to a justice’s jurisdiction. It refers to a court having a clerk to receive the money. Rev. Code, p. 618 ; lb. § 2648.

3. In this action, all that is required is, a payment or tender of the money to the execution, purchaser, or his vendee, which the Code prescribes as necessary to perfect the redemption. If the execution purchaser chooses to refuse the payment or tender thus made, he does so at his own risk. The payment or tender, either the one or the other, is all that the statute requires to be done, in order to revest the execution debtor “ with the title.” The language of the statute is this: “ The debtor must also pay or tender to the purchaser, or his vendee, the purchase-money, with ten per cent, per annum thereon, and all other lawful charges; and such payment or tender has the effect to reinvest him with the title; and if a conveyance has been made to the purchaser, he must, at the costs of the debtor, convey to him such title as he acquired by the purchase.” Rev. Code, § 2511. And ‘ ‘ if the possession of the land has been delivered to the purchaser by the debtor, and upon payment or tender as aforesaid, it is not restored to him, he may recover possession by a suit of unlawful detainer, before a justice of the peace.” Rev. Code, § 2512. Neither of these sections of the Code, nor both of them, requires the payment of the money tendered and refused to be paid into court. There was no error, then, in refusing the motion to bring the money tendered into court.

4. The pleadings in this action are just such as are required in an action of unlawful detainer, and nothing more. All that is demanded in such case is a complaint, which contains a definite description of the land sued for ; the plaintiff’s right of possession of such lands; that the defendant has had proper notice to quit; and that he unlawfully withholds the possession of such land from the plaintiff. These facts, alleged in such manner as presents them with sufficient perspicuity and precision to enable the defendant to take issue thereon in an intelligible form, is enough. Rev, Code, § 2629; Spear & Thomas v. Lomax, 42 Ala. 576. If the answer to such complaint is a plea of not guilty, then the plaintiff’s evidence should show a sale by the sheriff, a purchase by the defendant, a delivery of possession by the execution debtor to the execution purchaser, and a payment or tender to the purchaser, or his vendee, of the purchase-money, with ten per cent, per annum thereon, and all lawful charges, and proper notice in writing tó the tenant in possession to quit. This is all that is necessary to authorize a recovery. Rev. Code, §§ 2511, 2512, 3300.

The rulings of the court below were in conformity with the law, as expounded above.

Its judgment is, therefore, affirmed.