Ware & Wilson v. Warwick

48 Ala. 295 | Ala. | 1872

PETERS, J.

This action is not freed from the rules of law which govern pleadings in other cases. — 30 .Ala. 572. The statute describes unlawful detainer to be, “where one who has lawfully entered into possession of lands or tenements, after the termination of his possessory interest refuses, on demand in writing, to deliver the possession thereof to any one lawfully entitled thereto, his agent or attorney.” — Rev. Code, § 3300. This shows that the party who brings the suit must be the party, “lawfully entitled to possession.” And upon judgment in his favor, the court must render “judgment with costs, upon which he must issue a writ of execution, commanding the sheriff to restore the plaintiff to the possession of his lands and tenements, according to the complaint,” — Revised Code, § 3305. The complaint does not show a joint possession, but only a tenancy in common before severance. Such a possession only vests each tenant with a right of restitution of his own possessory interest. This is an interest separate and-distinct from the right of the co-tenant. The two are not the same — EevisedCode, § 1582. In such a case, the detainer may be from one tenant, while the other is left in quiet possession of his interest. The contracts of renting show that each party dealt separately with his own possessory interest. When this is so, the damages might be different. — Eev. Code, § 3312. It might also happen that under one lease this remedy would be barred, when at the same time it would be good under the other. — Rev. Code, § 3308. The same pleas could not answer the same complaint, and two judgments would have to be given on the same demand, and these judgments would have to be separate, not only as to the deféndant, but as to the plaintiffs also. Wilson could not recover for damages done to Ware’s possession, nor Ware for damages done to Wilson’s possession. And there could be no joint damages, as the injury is not alleged to have accrued from a joint detention. The complaint does not show such a possession, as the plaintiffs have a right both jointly to be restored to it. Two causes of action are joined in one suit. Each plaintiff is entitled to recover his own possession, but no more. When both can not recover, it is a misjoinder. — Gould. Pl. ch. 4, § 98; Archb. Civ. Pl. 61; 1 Chit. Pl. 188; ib. 13, 44, 66, 86, 205; 1 Tidd. Pr. 11, 12, 13, 14, (marg.) and cases there cited. There was, then, no error in sustaining the demurrers by the judgment of the court below.

The judgment of the court below is affirmed.