52 Ala. 103 | Ala. | 1875
The record of the present case discloses, in substance, the following facts: The appellee recovered the lands, for the use and occupation of which the suit is brought, in April, 1870, in a real action against one Mary Lankford, to which she made no defence. At the time of appellee’s recovery, one John M. Lankford and the appellant were in the joint possession of the premises, the latter holding under a contract with the former, founded on a valuable consideration, as a “ cropper,” for the year 1870. Previous to the making of this contract, John M. Lankford had been in possession of the premises for many years, holding under color of title, and adversely to all the world. John M. Lankford and appellant, nor neither of them, were parties or privies to the action against Mary Lankford, which, so far as the record discloses, determined nothing but the right of the plaintiff to recover of the defendant. After the recovery against Mary Lankford, the sheriff, with a writ of habere facias possessionem, rode over a field on the premises in company with the appellee — no other person being present — and told him that he put him in possession under said writ; both then rode off together. Subsequently, in the month of June, 1870, appellee gave notice to the appellant in writing, sent by a third iserson, that he would claim rent of him for the premises ; but there was no evidence that appellant ever, at any time, acquiesced in, or acknowledged the rightfulness of his claim. Appellee testified that he suffered appellant to remain on the premises by making no effort to dispossess him.
An action for the use and occupation of lands could not be maintained at the common law. Wherever the right to maintain such an action exists, it is conferred by statute. Our own Code prescribes when the action may be maintained in this State. It is when the demise is by deed or parol, and no specific sum is agreed on for rent; when the defendant has been let into possession on a sale of lands, which he has failed to consummate ; and when the tenant remains on the land by the sufferance of the owner. Rev. Code, § 2607.
It is contended that the facts of the present case authorize the appellee to maintain this action, under the section of the Code above quoted, on the ground that appellant remained on the land by the sufferance of appellee as the owner. We are unable to give our assent to this view. Appellant was never constituted the tenant of appellee by a demise express or implied. On the contrary, he entered under and upon an express contract on valuable consideration, by which he became liable to another; and an implied promise to one cannot be raised in ' the face of an express promise to another for the same consideration. Shumaker v. Nelms, 25 Ala. 126.
