Tubb v. Fort

58 Ala. 277

Opinion

BRIOKELL, C. J.

There can be no proposition more firmly established in the law, than that rent is an incident to the reversion; and that whoever is entitled to the reversion, at the time the rent becomes payable, is of right entitled to it, unless it is reserved from the grant, or has been previously severed. — Pope v. Harkins, 16 Ala. 323; English v. Key, 39 Ala. 113; Bank of Pennsylvania v. Wise, 3 Watts, 394. It is not material whether the assignment of the reversion is by the act of the lessor, or by operation of law, the rent passes to the assignee. The principle is thus stated in 2 Coke, (Butler & Hargroves,) p. 215, § 348: “Both assignees in deed and assignees in law shall have the rent, because the rent being reserved of inheritance to him and his heirs, is incident to the reversion and goeth with the same.” Though at one time, it was held, if during the term the lessee obtained the fee of the lessor, under a conveyance silent as to the rent, the rent for the remainder of the term only was extinguished. Martin v. Bradley, 3 Stew. 50. The later authorities hold, the transfer of the reversion carries the rent to the assignee, though it is not expressly mentioned, and there can be no apportionment of it between the lessor and the assignee.— English v. Key, supra.

We regard it, therefore, as undeniable, that the appellee, by the sale and conveyance to her of the lands, under the decree of the court of chancery against the lessor, became entitled to the rent accruing from the tenant, payable at the expiration of the year. She was vested with the reversion, and that carried the rent as an incident, and she could have pursued all the remedies for its recovery the lessor could have pursued, if his estate in the premises had not been terminated. The transfer to Morey, Watson & Dunlap of the agreement or obligation of the tenant for the payment of the rent, before it was due and payable, was doubtless binding on the lessor, and if his estate had remained undetermined ■until the rent was actually payable, would bave entitled tbe assignees to its recovery. But it is invalid and inoperative against the appellee. That assignment was made pending the suit in chancery, which involved the title to the land, and resulted in the decree for its sale, under which the appellee became the purchaser. The suit was notice to the tenant, and to the assignees of his obligation or agreement for the payment of the rent, of the infirmity of the lessor’s title to the premises, and of the superiority of the lien asserted by the appellee, and they are bound by the decree as if they had been parties to the suit. — Chaudron v. Magee, 8 Ala. 570; Center v. P. & M. Bank, 22 Ala. 743; Bolling v. Coster, 9 Ala. 921. The appellee, by her purchase at the sale under the decree in that suit, if the lessor had not made the lease, and had remained in possession, would have been entitled to immediate possession. The lease did not prevent the entire estate of the lessor from passing to the appellees. It was consequently out of her lands the rents issued, and she was entitled to them. An alienation of the reversion pending the suit, would have been subject and subordinate to the decree subsequently rendered therein. The pendancy of the suit restrained not only the power of the tenant to alienate the reversion, but his power to sever the accruing rent from the lands, so as to defeat or impair the rights of the purchaser under the decree. — Menough’s Appeal, 5 "Watts & Serg. 432. The assignees of the rent, therefore, are affected by the decree, as they would be if they were assignees of the reversion.' — Taylor’s Land. & Ten. §§ 446-47.

Though attornment by the ancient common law, was necessary to create the relation of landlord and tenant, when, pending the term, there was an alienation or assignment of the demised premises, the statute now dispenses with it, and the conveyance itself creates the relation, protecting the tenant only against the payment of rent, he may have paid to his original landlord without notice of it. — Revised Code, § 1568.

It is insisted for the appellants, that if the appellee was entitled to the rent, she had an adequate remedy at law for its recovery, and consequently the Chancellor erred in taking jurisdiction of the case, and decreeing her relief. Whatever may have been the doubts at one time entertained, it seems now to be settled, that if the right to recover rent is legal, not equitable, and there is an adequate remedy at law, courts of equity will not take jurisdiction to decree its recovery. If, however, the remedy • at law is inadequate or doubtful, or there is a peculiar equity, the court will take jurisdiction. — -1 Story’s Eq. § 684 b. o. We do not deem it necessary to in quire whether the bill discloses the inadequacy of the remedy at law, or a peculiar equity, which would justify the interference of the court.

The appellants did not, in the Court of Chancery, in any form, either by demurrer, motion to dismiss, or by answer, object that the remedy of complainant was at law. A demurrer seems to have been interposed at one time, assigning-only two causes — that there was no equity in the bill, and that the lessor, Thomas J. Jeffreys, was improperly joined as a defendant. The first is a mere general demurrer, the statute prohibits from being entertained, and the second, if well taken, was not a cause of demurrer for any of the defendants, except Jeffreys, and being taken by all, could not have been allowed. This demurrer was, however, waived by the subsequent answer of the defendants, in which it was not incorporated, nor does it seem ever to have been called to the attention of the Chancellor. The answers litigate the right of the complainant to the rent, and controvert its amount. This was the whole scope of the contention in the Chancery Court. In this court, for the first time, after litigation on the right and extent of recovery has been decided adversely to them, the appellants urge the remedy of the complainant was at law, and not in equity. In answer to the same objection, made to a bill for the recovery of rent, for the first time, at the hearing, Chancellor Kent said: “If the defendant intended to have objected to the jurisdiction of the court, he should have demurred to so much of the bill as prayed relief. It is a general rule, that he comes too late with his objection at the hearing, after he has, by his answer, put himself upon the merits.” — Livingston v. Livingston, 4 Johns. Ch. 287. The general rule of practice in courts of equity, has long been settled, that if the subject matter of the suit is not without the jurisdiction of a court of equity, and there may be circumstances under which it would be competent for the court to grant relief, the objection that there is an effectual and complete remedy at law, must be taken by demurrer, and comes too late at the hearing.- — 1 Dan. Ch. Pr. 550, (n. 8). In its very nature, the objection is of that class, which ought to be taken in the earliest stage of the suit, before costs have accumulated, or by the lapse of time irreparable injury may result, by remitting the complainant to a legal remedy, which has in fact become unavailing. Under our rules of practice, the equity of the bill is a subject of dispute, at any time before final decree, on a motion to dismiss, by any defendant, whether he has answered, or is in contempt for want of answer, unless he has demurred for want of equity, and his demurrer has been overruled. — 1 Brick. Dig. 781,§§1842-1349. The case of Andrews v. McCoy, 8 Ala. 920, as explained in the subsequent case of Lockhard v. Lockhard, 16 Ala. 423, presented the precise question we are considering. The bill stated the cause of action in the alternative, and one of the alternatives, if true, was fatal to a recovery. No objection was made to it in the court of chancery, and the proof showing a right of recovery, this court, in answer to an objection to the sufficiency of the bill, said: “If the bill had been demurred to for this cause, and the objection distinctly presented, it could have been obviated by an amendment. Instead of pursuing this course, the plaintiffs in error submitted to answer the bill, set up their title, and litigate their rights, without objection, and it would be grossly unjust to the complainant, to permit them now, after the cause has been heard on its merits, to raise an objection, which by their previous conduct they had waived in the primary tribunal. Such has been the constant course of' decision in this court for some years.” In Lockhard v. Lockhard, supra,, the bill was filed by one tenant in common against his co-tenant for an account of rents, disclosing that the complainant and the defendant had agreed the defendant should occupy the premises at a stipulated rent. The defendant answered without objection to the jurisdiction of the court, but on the hearing submitted a motion to dismiss, because the remedy of the complainant was at law, on the agreement for the payment of rent. The motion to dismiss was sustained, and this court held properly. The court carefully distinguishes the case from that of Andrews v. McCoy. The distinction is, that under our practice a motion to dismiss may be made on the hearing, though no demurrer has been taken, and in the latter case the motion was made. While in the former it was not, and was consequently regarded as waived. If a defendant may, as it can not be doubted he may, waive the objection, that the subject matter of the suit, though lying, as the recovery of rent does, within the concurrent jurisdiction of a court of equity, is in the particular case -without the jurisdiction of that court, because the remedy at law is adequate, he must be deemed to have waived it, when, without objection he answers, enters into active legislation on the merits, lures his adversary into security, withdraws his attention from the necessity of amendment, if an amendment can consistently with the facts be made, multiplies costs, protracts litigation, and on the hearing directs the attention of the court from the consideration of any other question, than whether the complainant has the right he asserts. Of course, we refer to cases in which the subject-matter of the suit lies within the jurisdiction of a court of equity, and the objection is, that the remedy at law is adequate, and not to cases in which the subject matter does not fall within the jurisdiction. We can not now sustain the objection made, that the remedy of the appellee at law, was adequate. That objection not having been made in the court below, in any form, if well founded, must be regarded as waived. — Tyler v. McGuire, 17 Wall. 253.

There was no error in overruling the exceptions to the report of the register. Upon questions of fact, such as the value of the use and occupation of lands, dependent not only on the evidence taken by deposition, but on the oral evidence of witnesses produced before the register, his conclusions are not disturbed, unless manifestly erroneous. — Mahone v. Williams, 39 Ala. 221. We can not say they are plainly wrong, but incline to the opinion they are correct, and we concur with the Chancellor in the opinion that they should not be disturbed.

Let the decree be affirmed.