Randolph v. CarltonRandolph v. Carlton
- Reporters:
- Before:
- Collier
Lead Opinion
In McRae v. McLean, 3 Porter’s Rep. 138, it was decided, that an attachment created a lien in favor of an attaching creditor, which cannot be divested by the replevying of the property; and that when attached, it was in the custody of the law, to abide the judgment of the Court. So in Pond v. Griffin, 1 Ala. Rep. 678, N. S., a case which arose subsequent to the passage of the act of 1837, it was held that an attachment levied on slaves created a lien which could not be divested by writs of fiei‘i facias, placed in the sheriff’s hands afterwards, but on the same day. [See Dore v. Dawson, 6 Ala. Rep. 712.]
It is perfectly clear from the act and the cases cited, that the ancillary attachment which is provided for, by the eighth section, may be levied on land, and that the lien in such case, and in respect to such property, is a necessary consequence of the levy. This *614conclusion is so obvious, from these citations, as to require neither argument or illustration.
In the case before us, the attachment was returned levied “on one tract of land adjoining the lands of La Carlton, Mrs. Gray, and others, containing two hundred acres,more orless.” This is sufficiently certain, and the precise location of the land may be shown by extrinsic proof. It is not necessary that the return should have affirmed that the defendant in attachment was the proprietor of the land ; this will be intended even where the regularity of the levy is drawn in question by a direct proceeding. The sheriff, it must be supposed, did his duty, and as he was commanded to attach the defendant’s estate, it will not be presumed that he levied upon the property of another person. [Bickerstaff v. Patterson, 8 Porter’s Rep. 245; Kirksey, et al. v. Bates, 1 Ala. Rep. N. S. 303; Miller, et al. v. McMillan, et al. 4 Ala. Rep. 527.]
In Swann v. Wilson, [1 A. K. Marsh. Rep. 99,] the general rule, that a tenant cannot controvei‘t his landlord’s, title, was admitted ; but it was said he may show that the landlord’s title has expired ; or that a title which he himself acquii‘ed has been adjudged by the decree of a court ,of equity to be the supei’ior one. And in Gregory’s heirs v. Crab’s‘heirs, [2 B. Monr. Rep. 234,] it was held, that the tenant is not estopped to show that the landlord *616conveyed the premises to a third person subsequent to the tenant’s entry, and that allegiance is due to the assignee.
Comyn, in his Treatise on the Law of Landlord and Tenant, 520-523, after stating the general rule, that the defendant cannot defend in ejectment against the landlord, or those claiming under him, upon a supposed defect of title, says : “ But though the defendant cannot show that his lessor never had title to the demised premises, he may, on admitting that he once had a title, shew, that his interest has expired. As, if the lessor being tenant per autre vie, bring debt against the lessee for rent, accruing since the death of cestui que vie, the tenant may show, (not that the lessor never had title, but, admitting that he once had title,) that the interest of the .lessor is at an end. Where, therefore, the heir of the lessor brought covenant for want of repairs, and the defendant pleaded that the lessor was only tenant for life, and traversed that the reversion was in him and his heirs, the Court held this to be a good plea.”. Further, the lessee may show that the lessor was only seized in right of his wife for her life, and that she died before the covenant was broken. In Doe ex dem Lowden v. Warson, 2 Starkie’s Rep. 230, Lord Ellenborough held, that the tenant in ejectment might show that his landlord had disposed of his interest during the term.
The defence set up in the case before us, when limited to the effect oí the attachment, and proceedings consequent thereon, does not deny that the plaintiff had a good title at the time the defendant became his tenant; but it assumes, that that title, be it what it may, has been extinguished since the tenancy commenced, and that the defendant has become the proprietor of the premises in question. By receiving the possession of land from another, under a lease, the tenant impliedly admits that his lessor has such a title as authorized him thus to dispose of the premises, but he cannot be held to affirm any thing in respect to its continuance ; consequently it is allowable to show that the title has expired, or been extinguished by operation of law.
We have seen, that by the levy of the attachment on the land, the plaintiff acquired a lien upon it, which continued in force up to the rendition of the judgment, and the statue saved it, and made it available, although a fieri facias instead of a venditioni expo-nas -was issued upon the judgment. Speaking of the lien which the levy of an attachment operates, the Superior Court of New *617Hampshire said, “ the existence of the lien or security is, in our view, in no way contingent, conditional or inchoate. Its existence does not depend upon the judgment. It exists in its full force, from the moment the attachment is made; as much so as a lien by judgment, upon the rendition of the judgment in the States where that security is recognized. As we have already seen, it fastens itself upon, and binds the property, at once giving priority of right,” &c. [Kittredge v. Warren, January term, 1844; 7 Law Reporter, No. 2.] The plaintiff purchased from Beverly after the levy of Wren’s attachment, and after the latter acquired a right to have the land sold to satisfy such judgment as he might obtain in that proceeding. This lien we have seen, was continuing, and paramount to any conveyance of the property which Beverly could make. If a third person had become the purchaser at the sale under the execution, the cases cited show, that the allegiance of the tenant would be transferred to him, if the tenant continued to occupy with the permission of such a purchaser; and without stopping to particularize, in several of the cases, the tenant was allowed to set up his own title, acquired after the extinction of the landlord’s ; and none of them are opposed to a defence thus sustained.
None of the elementary writers or adjudged cases which have fallen under our observation lay down the general rule, as one of unyielding and universal application ; but we have seen that it has many exceptions. Perhaps no case may be found which is in toticlem verbis like the present, but wo think the principle of several of those noticed by us are so strikingly similar, as not to require illustration to make the analogy more manifest.
The title of the plaintiff’ does not remain as it did at ■ the time the defendant’s tenancy commenced. Then, he had as it respects Beverly an unquestionable right, and if Wren failed in his suit, or the lien of the attachment was discharged, his title would be disembarrassed, unless it could be overturned, because the purchase was not bona fide. But the suit was prosecuted to judgment, and execution, the lien of the attachment made available, and all semblance of title divested from the plaintiff. Under such circumstances, the defendant might have resisted a recovery, (as we have seen,) if a third person had purchased, by becoming his - tenant; and there being no rule of law which forbids one situated *618as the defendant, to purchase, we think he may resist a recovery by setting up the title he has acquired.
If the question whether the lands which have been attached and sold under the execution were identical with those now in controversy, was one of a legal character, and the record showed their identity, we might perhaps be inclined to hold that the error noticed did not prejudice the plaintiff; and conseqnently furnished no cause for the reversal of the judgment. But there *619is no such proof recited in the record. The declaration describes the land by its numbers, according to the official survey, while (as we have seen,) in the levy of the attachment, it is described by its locality in reference to other proprietors of adjoining lands. Thus it is obvious that parol proof was necessary to settle the question ofidentity.
The other points raised in the cause, are either embraced by those considered, or cannot arise upon q future trial. Without extending this opinion to greater length, we have only to add, that the judgment of the Circuit Court is reversed, and the cause remanded.
Dissenting Opinion
dissenting — I am constrained in this case, to dissent from the opinion just delivered, because, in my judgment, the effect of it is to subvert the salutary rule that a tenant shall not be permitted to controvert the title of his landlord.
-Having regard to our statutes protecting the actual possession, I doubt the propriety of any exception to this rule, even when the title of the landlord is sold by sheriff’s sale, as the tendency of permitting the tenant, in that case, to purchase for himself, is to tempt the fealty which he owes his landlord, and tram one who should be a faithful retainer into a secret enemy; but conceding that as an exception, it does not touch this case. Here, there has been no sale of Randolph’s title, but Beverly’s is the only one with which the purchaser from the sheriff is invested. Beverly’s title is adverse to that of Randolph, and if Carlton had purchased directly from Beverly, no one could properly assert that a title *620so acquired could be interposed to defeat Randolph; and can there be a different rule when the title passes by means of the sheriff, who is the mere legal agent of Beverly? It may be said, that Beverly himself could convey no title to another, but, to test the principle, let it be supposed there was a valid contract, between Randolph and him for the purchase, made previous to the levy of the attachment, but that the deed was either not executed at all, or was so after the levy. What then is the condition of the parties under the operation of the rule declared? It seems to me, that the decision now made, extends the exceptions to the rule so far as to leave it of little value to the landlord.
In my judgment, the result which is attained by the Court is correct, but I think also, that the principle admitted at the close of the opinion governs the entire cause.