54 Ala. 300 | Ala. | 1875
These are cross appeals, and were argued and submitted together. The only question presented on the appeal’of Morris v. Beebe & Henshaw, which we will first consider, is, whether the statutory real action can be maintained against landlord and tenant jointly, or whether the tenant in possession is not the only proper party defendant.
The Code abolishes all common law forms of action.—Ivey v. Blum, 53 Ala. It prescribes a system of remedies bearing more or less analogy to the remedies furnished by the common law. In the application of these remedies, we must look for common law principles and precedents to aid us. The statute providing the remedy pursued by appellant is as follows: “ Actions to recover the possession of land may be brought in the nature of ejectment, without any statement of any lease or demise to the plaintiff or ouster by a casual or nominal ejecter, and in such cases the law now in force in relation to the action of ejectment, except so far as relates to the fictitious proceedings therein, or except so far as the same is changed by this Code, is applicable thereto. ”—R. C. § 2610. “ It is sufficient for the plaintiff to allege in his complaint that he was possessed of the premises sued for, describing the same by its designation at the land office, or, when that cannot be done, by metes and bounds, or other appropriate designation, and that after his right accrued, the defendant entered thereupon and unlawfully withholds and detains the same.”—R. C. § 2611. “The plea is not guilty, under which the defendant may give the same matter in evidence as upon the plea of not guilty in ejectment. Such plea is an admission of defendant’s possession of the premises, unless he distinctly states upon the record the extent of his possession.”—R. C. § 2613-14. The judgment is for the whole or a part of the premises.- — B. C. § 2618. A form of complaint is prescribed, entitled “ for the recovery of land, or possession thereof, complaint in the nature of an action for ejectment.” — B. C. p. 677. The Code expressly declares
The statutory remedy is expressly assimilated to the action of ejectment. Divested of the fictitious proceedings with which that action was encumbered, it was a plain, simple remedy for trying the right of possession. The statute is silent as to who are the proper or necessary parties plaintiff or defendant, and as to who may join, or be joined, in the one or the other capacity. The common law in reference to the action of ejectment, must determine who are the proper parties. The tenant in possession, he who entered and alone could enter into the consent rule, was the only proper and natural party defendant.—Adams Ej. 255 ; Tyler on Ej. 411; Wharton v. Clay, 4 Bibb, 167; Jackson v. Ives, 9 Cow. 661; West v. Talman, 4 Wash. 200. Said Lord Kenyon: “ On trial of an ejectment, two parties come to litigate the title to an estate, the person claiming, and the person who is supposed to withhold improperly the possession, but as soon as it turns out that the latter is not in possession, it seems to me the cause is ill-constituted between those persons.” Goodright v. Rich, 7 D. & E. 334. The statute, in terms, dispenses with the fictitious proceedings, the statement of the lease to the plaintiff, and the ouster by a casual or nominal ejector. Dispensing with the fictions, the law in relation to the action of ejectment not changed by the Code remains of force, applicable to the statutory action. This being true, to support the action, the plaintiff must prove the defendant in the actual possession of the premises at the time suit is commenced, unless it is admitted by the plea of the defendant.—Tyler on Ej. 472; Barbour on Parties, 265; Lucas v. Johnson, 8 Barb. 248; Fenn v. Wood, 1 Bos. & Pul. 573. While the fictitious proceedings were in use, the court was always careful to see that the declaration and notice had been served on the tenant in possession.-? — Tyler on Ej. 411. If not served on him, though served on his landlord, a judg
The landlord at common law, or rather by the rules and practice of the courts, was not permitted to defend, though his title was involved, even when he- received notice, without the consent of the tenant.—Adams on Ej. 256. To protect the landlord, statutes have been enacted similar to our present statute, providing “when the suit is against a tenant, the landlord must, on his motion, be made defendant.”- —R. C. § 2606. Such statutes do not authorize the plaintiff to make him an original defendant, in commencing suit, nor dispense with the necessity of making the tenant a party defendant. They simply confer on the landlord a right to intervene in the suit, which he may waive or exercise at his option. If he has title extending beyond the term he has created in the tenant, which can be affected by the suit, it will be his interest to intervene, and the title and the right of possession will generally be quieted by the judgment. If he has no such title, there is no reason to justify his. intervention, or for making him a party defendant.
The statute evidently contemplates that the action shall be brought only against the party in actual possession, and not against a party having a reversionary title to the possession. The averment of the complaint is, that the defendant “ unlawfully withholds and detains,” which can be asserted only of an actual possessor, and not of him whose
Because mesne profits, or damages for the use and occupation, are now recoverable in the suit for the recovery of the land, or its possession, does not change the rule as to the propel’ party defendant. The damages are an incident to the judgment, as in an action of detinue damages for the detention, are an incident to the recovery of the chattel detained. The object of the statute in authorizing their recovery, as an incident to the judgment in ejectment, was to avoid, the multiplicity of suits between the same parties necessary at common law.'. It was never intended to authorize the introduction of defendants against whom no other
There are doubtless cases in which the landlord, not suable in ejectment, may be liable with his tenant for mesne profits. Such a case would occur when the tenant enters under the landlord, after the plaintiffs right of possession had accrued. Then, on the principle that all who aid in the commission of a trespass are deemed in law trespassers, the landlord may be liable for the mesne profits during the occupation of his tenant.—Chirac v. Reinicker, 11 Wheat. 297. In such a case the remedy for recovery is an action of trespass, joining landlord and tenant or not as the plaintiff may elect. The action of ejectment is not in such a case a proper remedy for recovery of damages.
The question arising on the appeal of Gerald & Tyler v. Morris, is whether the tenants of a purchaser at sheriff’s sale, are subject to ouster if the premises are redeemed during the term for whieij they have leased?
The statutes authorizing the redemption of lands sold under execution, within two years after the sale, by the defendant or his judgment creditor, does not create the relation of mortgagor and mortgagee between the judgment debtor and the purchaser. When the sheriff’s sale is consummated by the delivery of the deed to the purchaser, he becomes the absolute owner, entitled to possession, and the rents and profits. The defendant in execution has no interest 'in the lands. There remains nothing in him, “ but the naked right of redemption, which is irretrievably lost if it
There are other unimportant questions arising on the record, which have been considered, Taut an express decision of them would not vary our judgment. We find no error in either judgment, authorizing a reversal, and they must be respectively affirmed.