BOULDIN, J.
Code, § 8003, new to the Code of 1923, undertakes to extend the remedy by action of unlawful detainer to the purchaser of lands sold under the power of sale in a mortgage or deed of trust as against the mortgagor or one holding under him.
The plaintiff, a mortgagee, purchasing at his own foreclosure sale, sued the mortgagor in unlawful detainer, relying upon this statute.
By our Constitution, § 168, a justice of the peace is denied jurisdiction in casas of
“ejectment.” Any possessory action for the recovery of lands wherein the right to possession turns upon title to the premises is thus withdrawn from the jurisdiction of these local courts whose incumbents are not usually learned in the law, nor required so to he.
An “unlawful detainer” is defined by section 8001, found in the same chapter wherein section 8003 appears, as “one who has lawfully entered into possession of lands as tenant, fails or refuses on ten days’ demand in writing after the termination of his possessory interest, to deliver the possession thereof to any one lawfully entitled thereto, his agent or attorney.”
To more explicitly exclude such actions from the effect of section 168 of the Constitution, it is declared the “merits of the title cannot be inquired into” in any suit under this chapter. Code § 8012.
By a long line of decisions this court has consistently held that unlawful detainer lies only as between landlord and tenant or those succeeding to their possessory relation with consequent rights and duties. In such case the right of plaintiff to possession does not depend on title but on the nature of defendant’s possession, a holding under and for plaintiff, the possession of one the possession of the other. Having derived possession from him, or being in possession, having become a tenant by contract, thus changing the possession from one in his own right to one in the right of the landlord, he is estopped to raise any question of title until he has put his landlord in status quo in the matter of possession after the termination of the possessory interest so held. Dwine v. Brown, 35 Ala. 596; Norwood v. Kirby’s Adm’r, 70 Ala. 397; Houston v. Harris & McCurdy, 71 Ala. 570; Pugh v. Davis, 103 Ala. 316, 18 So. 8, 49 Am. St. Rep. 30; Nicrosi v. Phillipi, 91 Ala. 299, 8 So. 561; Giddens v. Bolling, 92 Ala. 586, 9 So. 274; Cooper v. Gambill, 146 Ala. 184, 40 So. 827; Hill v. Harris, 179 Ala. 614, 60 So. 917.
The relation of mortgagee and mortgagor is not the same as that of landlord and tenant as affecting an estoppel against the mortgagor when sued by the mortgagee in this form of action. A distinction must be kept in mind between estoppel to deny title and estoppels arising upon proof of title and the relations thus shown.
Since Duval v. McLoskey, 1 Ala. 708, the appropriate action by the mortgagee to recover possession from the mortgagor has been declared to be ejectment, or, as then in vogue, the action of trespass to try title.
In such action the plea of not guilty may be interposed, as in other such actions, and so put in issue all questions going to the title, of plaintiff or defendant. Indeed, our statute extends the issues in suits between mortgagee and mortgagor to inquiries going to the mortgage indebtedness. Code, § 7465.
As well known, a mortgage passing the legal title, in the absence of reservation of right of possession in the mortgagor, express or implied, vests in the mortgagee a right of possession before or after default. He may elect to assert his right to possession or may leave the mortgagor in possession. If he takes possession before foreclosure he becomes accountable to the mortgagor for rents. If not, the mortgagor remains in possession in his own right, having the use thereof and the perception of rents as his own.
The mortgagee’s right to possession is because of his legal title, the title draws to it the right of possession. The mortgagor has not taken his possession under the mortgage, but the mortgagee derives his right of possession from the mortgagor through a conveyance of the legal title.
It seems to follow inevitably that the first and essential proof in an action for possession is evidence of the legal title on which the right to possession depends.
At once the muniment of title, the sufficiency of its terms as well as of its execution to pass a legal title, whether it is infected with fraud, whether such title still persists, or has ceased to be by payment of the mortgage debt — all this and more may become involved. In brief, the issue of title in the mortgagee becomes a primary issue. Code, §§ 7456, 7465; Lomb v. Pioneer Savings
&
Loan Co., 106 Ala. 591, 17 So. 670; Watson v. Herring, 115 Ala. 271, 22 So. 28.
So well has it been understood that a mortgagee, or one claiming under him, cannot sue the mortgagor in unlawful detainer, although a constructive tenancy at will or at sufferance has been recognized, that prior to the present statute, section 8003, we find no case where such right of action has been asserted in our courts. But in Nicrosi v. Phillipi, 91 Ala. 299, 8 So. 561, incidentally cataloguing the cases wherein such action does lie, Is mentioned that of a mortgagee, where the mortgagor, after default, remains in possession under contract to pay rent.
Strauss & Steinhardt v. Harrison, 79 Ala. 324, cited in Nicrosi v. Phillipi, supra, is to like effect, and further declares that even such attornment to the mortgagee cannot work an estoppel which will defeat the mortgagor’s homestead right in the mortgaged lands. He may set up the invalidity of such mortgage notwithstanding an agreement to hold as tenant of the mortgagee.
' This court has heretofore had occasion to consider acts undertaking to extend unlawful detainer to eases where the right of possession rests upon title.
Ex parte Webb, 58 Ala. 109, dealt with an act purporting to authorize an action of unlawful detainer by the purchaser at a tax sale for city taxes. In an opinion by Chief Justice Brickell, it was said:
“The proceeding the statute authorizes, has, necessarily, more of the elements, and bears a greater analogy to an action of ejectment, or the statutory real action, than to an action of unlawful- detainer proper. A legislative declaration that the party withholding the' possession is guilty of an unlawful detainer, and that suit for the recovery of possession, and damages for the detention, may be commenced before a justice of the peace, cannot be so construed as in effect to dis-seize a man of his freehold, and convert his estate into a mere right of action.”
On a later appeal, Webb v. Carlisle, Jones & Co., 65 Ala. 313, 315, the act was declared unconstitutional because involving trial of title to land. The opinion, by Mr. Justice Stone, declared:
“It is not within the power of the legislature to confer on justices of the peace jurisdiction in actions of ejectment, under the title of unlawful detainer.”
In Warren v. Jones. 219 Ala. 213, 121 So. 519, we considered Code, § 10157, new also to the present Code, found in the chapter on redemption, declaring that rights of 'possession acquired under that chapter may be enforced by action of unlawful detainer.
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BOULDIN, J.
Code, § 8003, new to the Code of 1923, undertakes to extend the remedy by action of unlawful detainer to the purchaser of lands sold under the power of sale in a mortgage or deed of trust as against the mortgagor or one holding under him.
The plaintiff, a mortgagee, purchasing at his own foreclosure sale, sued the mortgagor in unlawful detainer, relying upon this statute.
By our Constitution, § 168, a justice of the peace is denied jurisdiction in casas of
“ejectment.” Any possessory action for the recovery of lands wherein the right to possession turns upon title to the premises is thus withdrawn from the jurisdiction of these local courts whose incumbents are not usually learned in the law, nor required so to he.
An “unlawful detainer” is defined by section 8001, found in the same chapter wherein section 8003 appears, as “one who has lawfully entered into possession of lands as tenant, fails or refuses on ten days’ demand in writing after the termination of his possessory interest, to deliver the possession thereof to any one lawfully entitled thereto, his agent or attorney.”
To more explicitly exclude such actions from the effect of section 168 of the Constitution, it is declared the “merits of the title cannot be inquired into” in any suit under this chapter. Code § 8012.
By a long line of decisions this court has consistently held that unlawful detainer lies only as between landlord and tenant or those succeeding to their possessory relation with consequent rights and duties. In such case the right of plaintiff to possession does not depend on title but on the nature of defendant’s possession, a holding under and for plaintiff, the possession of one the possession of the other. Having derived possession from him, or being in possession, having become a tenant by contract, thus changing the possession from one in his own right to one in the right of the landlord, he is estopped to raise any question of title until he has put his landlord in status quo in the matter of possession after the termination of the possessory interest so held. Dwine v. Brown, 35 Ala. 596; Norwood v. Kirby’s Adm’r, 70 Ala. 397; Houston v. Harris & McCurdy, 71 Ala. 570; Pugh v. Davis, 103 Ala. 316, 18 So. 8, 49 Am. St. Rep. 30; Nicrosi v. Phillipi, 91 Ala. 299, 8 So. 561; Giddens v. Bolling, 92 Ala. 586, 9 So. 274; Cooper v. Gambill, 146 Ala. 184, 40 So. 827; Hill v. Harris, 179 Ala. 614, 60 So. 917.
The relation of mortgagee and mortgagor is not the same as that of landlord and tenant as affecting an estoppel against the mortgagor when sued by the mortgagee in this form of action. A distinction must be kept in mind between estoppel to deny title and estoppels arising upon proof of title and the relations thus shown.
Since Duval v. McLoskey, 1 Ala. 708, the appropriate action by the mortgagee to recover possession from the mortgagor has been declared to be ejectment, or, as then in vogue, the action of trespass to try title.
In such action the plea of not guilty may be interposed, as in other such actions, and so put in issue all questions going to the title, of plaintiff or defendant. Indeed, our statute extends the issues in suits between mortgagee and mortgagor to inquiries going to the mortgage indebtedness. Code, § 7465.
As well known, a mortgage passing the legal title, in the absence of reservation of right of possession in the mortgagor, express or implied, vests in the mortgagee a right of possession before or after default. He may elect to assert his right to possession or may leave the mortgagor in possession. If he takes possession before foreclosure he becomes accountable to the mortgagor for rents. If not, the mortgagor remains in possession in his own right, having the use thereof and the perception of rents as his own.
The mortgagee’s right to possession is because of his legal title, the title draws to it the right of possession. The mortgagor has not taken his possession under the mortgage, but the mortgagee derives his right of possession from the mortgagor through a conveyance of the legal title.
It seems to follow inevitably that the first and essential proof in an action for possession is evidence of the legal title on which the right to possession depends.
At once the muniment of title, the sufficiency of its terms as well as of its execution to pass a legal title, whether it is infected with fraud, whether such title still persists, or has ceased to be by payment of the mortgage debt — all this and more may become involved. In brief, the issue of title in the mortgagee becomes a primary issue. Code, §§ 7456, 7465; Lomb v. Pioneer Savings
&
Loan Co., 106 Ala. 591, 17 So. 670; Watson v. Herring, 115 Ala. 271, 22 So. 28.
So well has it been understood that a mortgagee, or one claiming under him, cannot sue the mortgagor in unlawful detainer, although a constructive tenancy at will or at sufferance has been recognized, that prior to the present statute, section 8003, we find no case where such right of action has been asserted in our courts. But in Nicrosi v. Phillipi, 91 Ala. 299, 8 So. 561, incidentally cataloguing the cases wherein such action does lie, Is mentioned that of a mortgagee, where the mortgagor, after default, remains in possession under contract to pay rent.
Strauss & Steinhardt v. Harrison, 79 Ala. 324, cited in Nicrosi v. Phillipi, supra, is to like effect, and further declares that even such attornment to the mortgagee cannot work an estoppel which will defeat the mortgagor’s homestead right in the mortgaged lands. He may set up the invalidity of such mortgage notwithstanding an agreement to hold as tenant of the mortgagee.
' This court has heretofore had occasion to consider acts undertaking to extend unlawful detainer to eases where the right of possession rests upon title.
Ex parte Webb, 58 Ala. 109, dealt with an act purporting to authorize an action of unlawful detainer by the purchaser at a tax sale for city taxes. In an opinion by Chief Justice Brickell, it was said:
“The proceeding the statute authorizes, has, necessarily, more of the elements, and bears a greater analogy to an action of ejectment, or the statutory real action, than to an action of unlawful- detainer proper. A legislative declaration that the party withholding the' possession is guilty of an unlawful detainer, and that suit for the recovery of possession, and damages for the detention, may be commenced before a justice of the peace, cannot be so construed as in effect to dis-seize a man of his freehold, and convert his estate into a mere right of action.”
On a later appeal, Webb v. Carlisle, Jones & Co., 65 Ala. 313, 315, the act was declared unconstitutional because involving trial of title to land. The opinion, by Mr. Justice Stone, declared:
“It is not within the power of the legislature to confer on justices of the peace jurisdiction in actions of ejectment, under the title of unlawful detainer.”
In Warren v. Jones. 219 Ala. 213, 121 So. 519, we considered Code, § 10157, new also to the present Code, found in the chapter on redemption, declaring that rights of 'possession acquired under that chapter may be enforced by action of unlawful detainer.
A purchaser at execution sale sued under that section. Going no further than the exigencies of the case demanded, we held on the.authority of our cases, supra, the action would not lie; in effect, that such construction of the statute renders it unconstitutional.
That the mortgagee has undertaken to foreclose and acquire the equity of redemption does not change the situation, but, if anything, still further involves the issue of title by act of the mortgagee in which the mortgagor was inactive. The statute does not purport to extend unlawful detainer to cases before foreclosure, but to the purchaser, one acquiring the equity of redemption. The case is strictly analogous to Warren v. Jones, supra.
We are impelled to hold section 8003 an infringement of section 168 of the Constitution.
The writer further thinks any other view would be a denial of due process of law, but a decision of this question is deemed unnecessary. Calhoun v. Fletcher, 63 Ala. 574.
Rehearing granted; judgment of reversal set aside, and cause affirmed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.
SAYRE, THOMAS, and BROWN, JJ., dissent.