51 Ala. 532 | Ala. | 1874
Lead Opinion
In the absence of statutory provisions, after the expiration of a tenancy by its own limitation, the landlord’s right of possession becomes complete, and he may at once exercise it by a peaceable entry upon the premises. If the tenant refuses peaceably to quit, the landlord must not resort to force, but must invoke a legal remedy. The common-
The common-law remedies were dilatory, subjecting the landlord to inconvenience and injury, and inducing tenants‘to disregard the fealty due the landlord. To heal these defects in the common law, a summary remedy is provided by our statutes for the expulsion of the tenant. It is declared, an unlawful detainer is when one has lawfully entered into possession of lands or tenements, and refuses, after the termination of his possessory interest, to deliver, on demand in writing, possession to any one lawfully entitled thereto. R. C. § 3300. The remedy prescribed is a proceeding before a justice of the peace, and is summary. R. C. §§ 3302-10. An appeal to the circuit court from the judgment of the justice is authorized. If the appeal is taken by the defendant, the execution of the writ of restitution is not suspended, unless he gives bond with sureties, in the penalty of twice the value of the yearly rent of the premises, conditioned to pay the plaintiff all such damages as he may sustain by the prosecution of the appeal. If the judgment of the justice is affirmed, the circuit court must render judgment against the appellant and his sureties, for the value of the rent of the premises pending the appeal. R. C. §§ 3314-16.
6. A dischai-ge in bankruptcy is not pleadable in an action ex delicto, unless, perhaps, in an action for the wrongful taking or conversion of personal property. The form of the action is the decisive test of the propriety of the plea. Goodtitle v. North, Douglass, 562; Williams v. Dickens, 5 Iredell (Law), 259; Kellogg v. Schuyler, 2 Denio, 73. In Goodtitle v. North, supra, the action was trespass for mesne profits, and a plea of bankruptcy was interposed, and held bad, Lord Mansfield saying, that the form of action is decisive.
The statutory proceeding for an unlawful detainer is but a substitute for the common-law remedy by ejectment. The right to recover rent accruing, pending an appeal, is intended to avoid the multiplicity of suits, and the delay in the enforcement of the right, which was consequent upon the common-law remedy of trespass quare clausum, for mesne profits. The statute works no change in the character of the plaintiff’s cause of action, nor in the nature of the defendant’s liability.
The holding over, after the expiration of the tenancy, is not under any conti’act, but in violation of the contract under which
To the statutory action, bankruptcy is not a defence. The action is for a tort, — is ex delicto, not ex contractu.
The circuit court erred in not sustaining the demurrer of appellant to the appellees’ plea of bankruptcy; and for that error, the judgment is reversed, and the cause remanded.
Dissenting Opinion
(dissenting). — At this term, it was first decided in this case, that the damages recoverable from a tenant, holding over after the termination of his lease, and demand for possession, in an action of unlawful detainer, apart from the judgment of restitution of the property, is provable against his estate in bankruptcy, and therefore barred by his discharge. On a second application for rehearing, this ruling has been set aside, and a judgment is rendered to the contrary. I dissent from this latter judgment, and reassert the correctness of the former, for the following reasons : —
The appellant recovered a judgment, in October, 1865, against the appellees, in an action of unlawful detainer before a justice of the peace. The latter appealed to the circuit court. No special damages were claimed, and the writ of restitution was not suspended. On the trial de novo in the circuit court, the defendants pleaded that, since the last continuance, they had obtained their discharge in bankruptcy. In connection with this plea, it was admitted by the plaintiff, that she had obtained possession of the property before the adjudication of bankruptcy, and that the suit was continued solely for the recovery of damages and costs. The court sustained the plea over a demurrer for its insufficiency.
The bankrupt law of 1867 is the first of its kind in the United States, and I believe in England, which allows to be proved demands “ for unliquidated damages arising out of any contract or promise.” § 19. Its 21st section forbids a creditor, whose debt is provable, to proceed to final judgment in any other court against the bankrupt, without leave of the bankrupt court. Its 34th section discharges the bankrupt
The court holds the form of action decisive of the provability of the demand, under the authority of Goodtitle v. North, Douglas Rep. 562. In that case, bankruptcy (Stat. 5 Geo. 2 cap. 30) was held to be no plea in bar to an action of trespass for mesne profits. Why ? Lord Mansfield said, because, “ when damages are uncertain, they cannot be proved under a commission of bankruptcy.” Askurst, J., said: “ The plaintiff-goes for a compensation in damages, the amount of which is uncertain, and cannot be sworn to before the commissioners, but must be ascertained by a jury upon all the circumstances.” Buller, J., said: “ The damages here are as uncertain as in an action of assault.” No such difficulty can arise under our present act, unless, perhaps, in case of special damage, which is not alleged in this case. Section 19 provides: “ If any bankrupt shall be liable for unliquidated damages, arising out of any contract or promise, or on account of any goods or chattels wrongfully taken, converted, or withheld, the court may cause such damages to be assessed in such mode as it may deem best, and the sum so assessed may be proved against the estate.”
Is the form of action decisive of the merits of the plea? Chitty says, the action for mesne profits “ is in form an action of trespass vi et armis, but in effect to recover the rents and profits of the estate.” 1 Chit. Plead. 193. Shall the creditor decide, at discretion, his debtor’s right of release, if he can possibly sue him in a particular form of remedy ? Or, is it the privilege, of the debtor to be released, if his liability is capable of being proved? I take it, that neither of these propositions is entirely true, but that the sound doctrine is, if the demand is usually or frequently regarded and treated in law as one arising out of a contract or promise, express or implied, it is provable, and consequently barred by the discharge. Trespass quare clausum fregit, for the recovery of mesne profits from a tenant holding over, is as obsolete as an action on
In Crosby v. Wentworth (7 Metcalf’s Mass. R. 10), which was under the bankrupt law of 1841, the plea of bankruptcy was held not to bar the recovery of the premises. The court said, the damages were not settled by the judgment. It is well known that the act of 1841 was confined to debts technically, and that the prejudice against it caused congress speedily to repeal it, and the courts greatly to restrict its operation. In Williamson v. Dickens (5 Iredell’s N. Car. R. 259), the court held implied trusts, such as those of agents, factors, &c., not to be included in the fiduciary debts excepted from discharge under the law of 1841, because “ it could not have been the in tention of the national legislature, in passing an act with a view to the relief of bankrupt debtors, so to restrict, its operation.” But, it held the form of the action decisive of the effect of the bankrupt’s discharge, on the authority of Goodtitle v. North, supra. The defendant was said not to owe such a debt as compelled the plaintiffs to prove it under the commission. The form of the action was set against the effect of the recovery, the substance of the demand, in construing a law designed to free an insolvent person from responsibilities from which, perhaps, he could never escape during his life, but which would effectually exclude him from business and usefulness. I hold the certificate of discharge to be a bar to any demand which the holder is at liberty to prove, in the interest both of the creditor and the debtor.
This was an action of unlawful detainer, brought for a store-house in Montgomery by appellant against appellees. From a recital in the record it appears that, not long after the suit was brought, the plaintiff in it took possession of the premises sued for, and has ever since had possession of them, and that it was agreed by the parties that the suit should not be further prosecuted, except to recover damages for the time plaintiff had been kept out of possession. The appellees pleaded, puis darrein continuance, their discharge under the bankrupt law from their debts ; to which appellant
With the opinion heretofore read as that of the majority of the court, holding that a plea of discharge as a bankrupt is not a good defence in an action of unlawful detainer, we are satisfied. A similar decision was made by the supreme judicial court of Massachusetts, in Crosby v. Wentworth (7 Metc. R. 10), in reference to a discharge under the bankrupt act of 1841; which, so far as the action of unlawful detainer is concerned, was not different from the act now in force.
But it is urged that, even if it be conceded that the decision made upon the demurrer should not be disturbed, yet appellant, by taking possession of the premises sued for, had “ falsified her writ, and thus the suit was by her own act abated. Some old cases are referred to as authorities to this effect. To a similar argument made in the case of Crosby v. Wentworth, supra, Shaw, C. J., replied: “ As to the effect of the plaintiff’s entry and taking possession of the premises, pending the appeal, the court are of opinion, that if the defendant could take advantage of it at all, it must be by a plea puis darrein continuance ; and not having been so pleaded, at the first term after the entry was made, it is no bar to a judgment. The rule upon which the defendant relies is strictly technical, and a technical answer is therefore sufficient.” So we might say in this cause, since no such plea of entry and possession was interposed by the defendants below. The agreement of record was only an admission of certain facts, that dispensed with the necessity of proving them.
But it is proper to say, further, that in order to avoid multiplicity of suits, it is the policy of our law to encourage the practice of assessing the damages to which the owner of property may be entitled for being deprived of the possession and enjoyment of it, in the same suit in which the possession of the property itself is sought to be recovered. It is expressly provided by sections 3312 and 3316 of the Revised Code, that this may be done in the action of unlawful detainer. And the observations and reasoning of Chilton, J., on this subject, in Doe, ex dem. Kennedy v. Holman et al. (19 Ala. R. 734), are as applicable to this action as to that of ejectment.
The application for a rehearing is denied.