| Ala. | Dec 15, 1884
— It is entirely immaterial whether the land in controversy was purchased by Thomas Ivie, or by his wife, as a complete stranger to the judgment or decree under which the sale of it was made by the Chancery Court. If we concede all that is claimed by appellant’s counsel, and assume that Thomas Ivie was the real purchaser, taking the title in his wife’s name, for convenience or otherwise, and, for this reason, that the case comes fully within the principle decided in McDonald v. Mobile Life Insurance Co., 65 Ala. 358" date_filed="1880-11-15" court="Ala." case_name="McDonald v. Mobile Life Insurance">65 Ala. 358 (holding that the owner of a. judgment, who purchases land under an execution issued on it, takes it subject to the risk of losing title by a subsequent reversal of the judgment on appeal to this court); nevertheless, the present action, for use and occupation of the laud, cannot be maintained. It is 'shown that the defendants are in possession of the premises as the tenants of Mrs. Ivie, who, by the agency of her husband, entered upon the land, claiming it adversely as a purchaser, and holding under a deed executed to her by a register in chancery. There is a repudiation, in other words, by the defendants, of all contractual relations with the plaintiff, whether as landlord and tenants, or otherwise.
The action for use and occupation of land must be based upon the existence of a contract, express or implied, between the owner of the land and the occupant. It will not lie against a mere trespasser. Nor can it be sustained against one who is in possession of land holding adversely to the claimant, and disputing his title. The title to land, moreover, is not per-, mitted to be tried collaterally in an action of this character, which is purely personal. These principles have been long-settled in this State, and are generally recognized by the authorities elsewhere. — Fielder v. Childs. 73 Ala. 568 ; Smith v. Houston, 16 Ala. 111" date_filed="1849-01-15" court="Ala." case_name="Executors of Smith v. Houston">16 Ala. 111; Davidson v. Ernest, 7 Ala. 817" date_filed="1845-01-15" court="Ala." case_name="Davidson v. Ernest">7 Ala. 817 ; Taylor’s Land, and Ten. (7th Ed.) §§ 635, 637; Evertsen v Sawyer, 2 Wend. 507" date_filed="1829-05-15" court="N.Y. Sup. Ct." case_name="Evertsen v. Sawyer">2 Wend. 507; 1 Wash. Real Prop. (4 Ed.) 591-592, 594 (376*-377*); Kittridge v. Peaslee, 3 Allen, 237; Code, 1876, § 2956; see, also, Beatty v. Brown, ante, p. 250.
We discover no error in the record, and the judgment is affirmed.