| Ala. | Dec 15, 1884
The action, which is one of ejectment under the statute, can be sustained only in the event of the plaintiff’s being entitled to enter and take actual possession of
The nature of the defendants’ possession, and the character of their title, was of material importance in determining this question. To show this, it was clearly permissible to introduce in evidence the written instrument executed on the 18th of March, 1865, by Maria Watrous to A. J. Wells, relating to this land; the plaintiff claiming as the sole heir of the former, and the defendants as heirs of the latter, and both parties litigant therefore deriving title from, if not claiming through the same person, Mrs. Watrous. The effect of this instrument was to show that the title of Wells, and of those claiming under him, was originally subordinate and permissive — a fact which bears most materially on the issues arising under the defense of the statute of limitations, and the alleged adverse possession of the defendants and their ancestor. '
The instrument itself is somewhat complex in its character. It appears, in one aspect, to have been intended as an informal mortgage of the rents and profits, being declared to be given as “ collateral security ” for a specified debt; bearing some analogy to a “ Welsh mortgage,” though essentially different from such an instrument in many particulars. In another aspect, it is impressed with the features of an express trust by ■which an agency has been created, coupled with an interest in the property which is the subject of the agency, with the power to manage for the joint benefit of both parties. But, with these multiform features, it, perhaps, bears a more striking similitude, in legal effect, to a lease, though having no operative words of grant or demise. The owner of the premises, having voluntarily by written agreement dispossessed himself, vests in another the right of possession to the premises, with power to control them, and to collect the rents, and appropriate them to the payment of a debt admitted to be due the occupant ; and this right is to continue until the debt is paid. We incline to the view, that the agreement may be treated as analogous to a lease, and for the purposes of this decision we regard it in this aspect.
The main defense urged in the case is, that the action is barred by the statute of limitations, by reason of the adverse claim of title to the premises by A. J. Wells, the quasi lessee, and the defendants who hold under him. In support of this defense it is shown that, after Wells had entered into the permissive occupation of the house and lot under Mrs. Watrous, in March, 1865, and after her departure for Texas, where she died in the year 1880, he disclaimed her title to the property, and set up an adverse claim in himself, which is asserted to have been continuous, open, and notorious. There is no doubt
But the rule of the common law is, that whenever a tenant undertakes to disavow the relationship in this manner, by a hostile claim of ownership in himself — such a claim, at least, as would mature into a good title under the operation of the statute of limitations, if not redressed by action — this repudiation of the loyalty of his obligations will operate as a forfeiture of the lease, at the election of the landlord, who may proceed to consider the tenant as a stranger and a trespasser, and eject him accordingly.-— Willison v. Watkins, 3 Pet. 43" court="SCOTUS" date_filed="1830-02-20" href="https://app.midpage.ai/document/willison-v-watkins-85661?utm_source=webapp" opinion_id="85661">3 Pet. 43 ; Newman v. Rutter, 8 Watts, 51" court="Pa." date_filed="1839-05-15" href="https://app.midpage.ai/document/newman-v-rutter-6311983?utm_source=webapp" opinion_id="6311983">8 Watts, 51; Jackson v. Vincent, 4 Wend. 633" court="N.Y. Sup. Ct." date_filed="1830-05-15" href="https://app.midpage.ai/document/jackson-ex-dem-van-schaick-v-vincent-5513422?utm_source=webapp" opinion_id="5513422">4 Wend. 633; Duke v. Harper (6 Yerg. 230), 27 Amer. Dec. 462. If the rule were otherwise, landlords would be without remedy, in cases where tenants should arrogate to themselves hostile claims of ownership to the rented premises. ■ This principle is modified only pro tanto by our statutes. Section 2196 of the Code (1876) provides, that “a conveyance made by a tenant for life or years, purporting to convey a greater interest than he possesses, or can lawfully convey, does not work a forfeiture of his estate, but passes to the grantee all the estate which the tenant could lawfully convey.” The effect of this statute is to take out of the operation of the rule of forfeiture mere conveyances under which a hostile title may be asserted. It has no reference to any other mode by which an adverse possession may be set up. The distinction is of importance, in view of its bearing on the statute of limitations. — Pickett v. Pope, 74 Ala. 122" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/pickett-v-doe-ex-rel-pope-6511701?utm_source=webapp" opinion_id="6511701">74 Ala. 122 ; Smith v. Cooper, 59 Ala. 494" court="Ala." date_filed="1877-12-15" href="https://app.midpage.ai/document/smith-v-cooper-6509970?utm_source=webapp" opinion_id="6509970">59 Ala. 494.
In view of this principle, the court properly ruled out the evidence tending to show an indebtedness from Mrs. Watrous to A. J. Wells. If the latter had held under the lease, this evidence would have been clearly competent. Bnt, as he had repudiated it, he can claim no benefit under it. Conceding that the special plea, to which a demurrer was sustained, could be filed in connection with the general issue, the action of the court in sustaining the demurrer may be justified for a like reason.
The court did not err in charging the jury that, before the adverse possession of the defendants could avail as a bar to this action, such fact must have been brought to the knowledge of the plaintiff, or of her intestate ancestor. The father of defendants entered the premises in recognition of the title of
We find no error in tlie record, and the judgment is affirmed.