Steed v. Hinson

76 Ala. 298 | Ala. | 1884

CLOPTON, J.

— ■“ Rent is incident to the reversion ; and the lessor’s transfer of the reversion, though without the tenant’s attornment to the assignee, or any express mention of the rent, carries with it the rent falling due thereafter. The holder of the reversion may, indeed, sever the rent from the reversion ; but, unless it is specially severed, the rent follows the reversion as a part of the realty.” — English v. Key, 39 Ala. 113. Whether there may be a parol reservation of the rent, where the lessor absolutely conveys the reversion, and the grantee pays the full consideration otherwise, is a question not involved in the record, and which we leave undecided. The contention is, whether it is competent to show, by parol evidence, that the real consideration of the sale of the lands was the sum of six hundred dollars — the consideration expressed in the conveyance — and the defendant’s written contract for the rent, which the plaintiff, on the delivery of the deed, retained with the consent of her grantee, in pursuance of the terms of sale.

The consideration clause of the deed is not conclusive. The validity of the conteyance does not depend on the amount of the consideration expressed therein, and it is not presumable that the attention of the parties was specially directed to the subject. The recitals of the consideration, general or special, are always open to inquiry, and the true consideration may be shown, to sustain, vary, or defeat them. It is not permissible to prove a consideration different in character, or inconsistent with the one expressed ; but, when the consideration recited is valuable, the amount may be lessened or enlarged by extrinsic evidence. Parol evidence, for this purpose, is not regarded as tending to vary or contradict the terms or legal effect of the deed. The amount of the consideration, or whether it was money or some other property, or both, is not deemed an essential element of the contract; and an additional consideration to that shown in the deed may be shown by parol. — McGehee v. Rump, 37 Ala. 651; Wilkerson v. Tillman, 66 Ala. 532; Stringfellow v. Ivie, 73 Ala. 209.

Section 2099 of the Code makes all contracts and writings for the payment of money or other thing, or for the performance of any act or duty, assignable by indorsement, so as to authorize an action thereon by each successive indorsee. This statute was intended to provide a mode of assignment by which the assignee may bring suit in his own name. Independent of the statute, such contracts are transferable by delivery.; and the only limitation is, that an action thereon, if the contract be not for the payment of money, shall be brought in the name of the party having the legal title, for the use of the transferree. Smith v. Wooding, 20 Ala. 324; Phillips v. Sellers, 42 Ala. 658 ; Henly v. Bush, 33 Ala. 611. There is nothing in the form or nature of the contract sued on, that defeats its assignability, unless it be the particular consideration, — rent of land.

In Thompson v. Spinks, 12 Ala. 155,-it was held, that the effect of the statute then in force, giving a landlord a lien, was, “that rent in arrears, or falling due, is merely a debt due from the tenant to the landlord, for the payment of which the latter has a lien on the crop grown on the premises.” And in Westmoreland v. Foster, 60 Ala. 448, it was held, that the lien exists independent of the remedy by attachment, given to the landlord to enforce it, and passes by assignment of the rent-note. The statute at that time not extending the remedy by attachment to the assignee, the lien was enforced in his favor by bill in equity. The claim of the landlord for rent was assignable, previous to the enactment of section 3470, and the assignment carried with it the lien of the' landlord. Such claims were not exceptions from other contracts for the payment of money or other thing.

But, however this may have been, such claims are made assignable by section 3470, which provides: “The claim of the landlord for rent, and advances and property obtained, with values advanced, may be assigned by the landlord; and the assignee shall be invested with all the rights of the landlord, and be entitled to all his remedies to enforce them.” It is manifest that the effect of the statute is, to authorize a severance of the claim for rent from the reversion ; and this may be shown by parol evidence, where such evidence does not tend to contradict or vary the. terms or legal effect of the deed. In Quimby v. Stebbins, 55 N. H. 420, parol evidence was admitted to prove a contract, that the vendor should occupy the premises sold for a designated term thereafter, as part of the consideration of the conveyance. Cushing, C. J. said : “ But the defendant, not denying the plaintiff’s right to the possession of the lands, and not denying that he would liable to pay for it, and not denying the receipt of the consideration so far as is necessary to support the deed, proposed to show that a part of the consideration of the deed was, by agreement, to be applied in payment of this rent. If so much of the consideration of the deed had been left in the plaintiff’s hands unpaid, the defendant might have maintained an action to recover the balance. He may equally well show, that so much of the consideration money of the deed has been paid by the plaintiff and received by him, by its being appropriated to the payment of this rent.” — Kent v. Kent, 18 Pick. 569 ; Preble v. Baldwim, 6 Cush. 649.

The plaintiff does not controvert, that by the grant her grantee acquired an equitable right to the rent-contract, as an incident to, and as following the reversion. But, conceding this, she-proposed to prove a fact independent of the terms or legal effect of the conveyance, — a collateral agreement incidentally connected with its stipulations. — Davenport v. Mason, 15 Mass. 85. If a part of the consideration money had been left unpaid, and some time afterwards, the rent-contract having been previously delivered, her vendee had re-delivered it to her in payment of such unpaid balance, her right to recover from the defendant would not be questioned. What difference, in principle, does it make, that, instead of the mere form of an instantaneous manual delivery and re-delivery, the plaintiff was allowed to retain the contract in part payment of the consideration of the conveyance 1 No indorsement, or other written assignment, was necessary to vest the legal title. The contract being payable to her, the legal title was, and remained in her; and the retention' of the note as part payment, with the consent of the vendee, and in pursuance of the terms of sale, reunited in her the legal and equitable title.

For the purpose for which it was offered, the parol evidence should have been admitted.

Ileversed and remanded.