Drakford v. Turk

Supreme Court of Alabama

Drakford v. Turk

75 Ala. 339

CourtSupreme Court of Alabama

DecidedDecember 15, 1883

StatusPublished

Cited by14 cases

This text of 75 Ala. 339 (Drakford v. Turk) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Drakford v. Turk, 75 Ala. 339 (Ala. 1883).

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Opinion

BRICKELL, C. J.

When an attachment is sued out for a cause of action upon which the statutes do not authorize its issue, the irregularity can not be reached by a plea in abatement, or by a motion to quash it. Such plea, or .motion is appropriate only to reach defects or irregularities apparent on the-face of the affidavit, bond, or writ, and do not involve an inquiry into the nature or character of the cause of action. The appropriate method of reaching the objection, that the writ will not lie for the enforcement of the particular cause of action, is a rule upon the plaintiff to show cause against the dissolution of the writ and its levy; and the motion must precede a plea to the merits.—Jordan v. Hazard, 10 Ala. 221; s. c. 12 Ala. 180; Brown v. Goats, 56 Ala. 439; Rich v. Thornton, 69 Ala. 473.

The motion for the rule to show cause why the attachment should not be dissolved was interposed, and is the motion upon which the judgment of the circuit court dissolving the attachment is founded. The question, therefore, now raised is, whether a mortgagee, giving notice to the tenant of the mortgagor, that he claims the rent falling due in the future, by virtue of the notice, becomes the landlord of the tenant, entitled to the statutory lien on the crops grown on the rented premises for the payment of the rent, and can by process of attachment enfoi’ce the lien. The question must be answered negatively. There is no relation of privity or contract between the mortgagee and the tenant; and if there is a relation arising between them which can be denominated that of landlord and tenant, it arises only by implication of law. The statute contemplates only the conventional relation of landlord and tenant, subsisting because of the contract between the parties. It has not been construed as extending to the relation when arising by implication or operation of law, working an entire change of the party standing according to the contract in the relation of landlord.—Tucker v. Adams, 52 Ala. 254. But in this case the mortgage was executed before the renting of the premises, and before the entry of the tenant. A mere notice by the mortgagees that they claimed the rent, would not convert the tenant into the tenant of the mortgagees.— Comer v. Sheehan, 74 Ala. 452.

There was no error in the judgment of the circuit court, and it must be affirmed.

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BRICKELL, C. J.

When an attachment is sued out for a cause of action upon which the statutes do not authorize its issue, the irregularity can not be reached by a plea in abatement, or by a motion to quash it. Such plea, or .motion is appropriate only to reach defects or irregularities apparent on the-face of the affidavit, bond, or writ, and do not involve an inquiry into the nature or character of the cause of action. The appropriate method of reaching the objection, that the writ will not lie for the enforcement of the particular cause of action, is a rule upon the plaintiff to show cause against the dissolution of the writ and its levy; and the motion must precede a plea to the merits.—Jordan v. Hazard, 10 Ala. 221; s. c. 12 Ala. 180; Brown v. Goats, 56 Ala. 439; Rich v. Thornton, 69 Ala. 473.

The motion for the rule to show cause why the attachment should not be dissolved was interposed, and is the motion upon which the judgment of the circuit court dissolving the attachment is founded. The question, therefore, now raised is, whether a mortgagee, giving notice to the tenant of the mortgagor, that he claims the rent falling due in the future, by virtue of the notice, becomes the landlord of the tenant, entitled to the statutory lien on the crops grown on the rented premises for the payment of the rent, and can by process of attachment enfoi’ce the lien. The question must be answered negatively. There is no relation of privity or contract between the mortgagee and the tenant; and if there is a relation arising between them which can be denominated that of landlord and tenant, it arises only by implication of law. The statute contemplates only the conventional relation of landlord and tenant, subsisting because of the contract between the parties. It has not been construed as extending to the relation when arising by implication or operation of law, working an entire change of the party standing according to the contract in the relation of landlord.—Tucker v. Adams, 52 Ala. 254. But in this case the mortgage was executed before the renting of the premises, and before the entry of the tenant. A mere notice by the mortgagees that they claimed the rent, would not convert the tenant into the tenant of the mortgagees.— Comer v. Sheehan, 74 Ala. 452.

There was no error in the judgment of the circuit court, and it must be affirmed.

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75 Ala. 339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drakford-v-turk-ala-1883.

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