Tyson v. Chestnut

118 Ala. 387

Opinion

McCLELLAN, J.

We entertain no doubt that the redemption of the land of which the plaintiff, Chestnut, was lessee from S. L. Tyson, a minor, who purchased at the sale foreclosing the mortgage, was efficaciously effected by the payment of the purchase money, with ten per cent, per annum thereon, and all other lawful charges to Mrs. M. M. Tyson, the guardian of his estate and person. The statutory provision is this: “The debtor must also pay or tender to the purchaser or his vendee the purchase money, with ten per cent per annum thereon, and all other lawful charges; and such payment or tender has the effect to reinvest him with the title; and if a conveyance has been made to the purchaser, he must, at the cost of the debtor, convey to him such title as he acquired by the purchase.” — Code of 1886, §1881; Code of 1896, §3507. The statute is not to be so narrowly construed in respect of the person making or the person to whom tender and payment is to be made as to require the tender to be made by a debtor or to a purchaser who is non sui juris, and incapable of making or receiving a binding payment, or failing that, to force a proceeding in chancery to effectuate redemption, when the incapacitated party is under guardainship. In Barringer v. Burke, 21 Ala 765, it was ruled that when lands sold under execution are purchased and held by a trustee of a feme covert in trust for her, an offer by a, judgment creditor to redeem under the statute is sufficient, if made to the trustee. It would seem that the inclination of the court was that a tender to the cestui que trust would also have been sufficient; but a decision to that effect was not necessary to the case, and was expressly pretermitted. But in Couthway v. Berghaus, 25 Ala. 393, it was expressly held that where the legal title is in a non-resident naked trustee and the cestui que trust has control of the title and is in possession and in the perception of the rents and profits, tender may be made to the latter. So it is safe to say that a tender or payment may be good though not made to the holder of the legal title, the "'purchaser” at the sale sought to be redeemed from. On the other hand, it is held that such tender and payment when the debtor is under disability need not be made by him, but is well made by his guardian. — Marvin v. Schilling, 12 Mich. 356; Pardee v. Van Ahken, 3 Barb. (N. Y.) 534.

These several cases illustrate the liberality of construction to be applied to the statute in respect of the persons to or by whom tender and payment may be made. It is certainly no extension of this liberality, if indeed an invocation of it is needed to justify the proposition, to declare that a tender or payment is well made by a pérson authorized generally to pay money for the debtor, and to a person in like manner authorized to receive money which the purchaser is entitled to or under a duty to receive. If the purchaser has a general agent, Ave apprehend that tender of payment under the statute made to such agent Avould be good; and a fortioriAA’hen the purchaser is under such disability that no valid payments can be made to him, and has a guardian AAdiose duty and exclusive right it is to receive all funds belonging or coming to his Avard or which another has a right to pay to his ward. It was surely not the intent of the lawmakers to leave redemption from purchasers who are non sui juris unprovided for; but that would be the effect of holding that the statute does not in such cases authorize redemption through the guardians of such persons, for it is not perceived how a resort to chancery, as suggested by counsel, could help the matter. All that such court could do obviously would be to decree that the tender be made to the guardian and payment be accepted by him, and this only upon the assumption that the statute authorizes such tender and payment; and if it does there is no occasion for any decree to that effect. The fact that the title is in the minor is of no consequence in this connection on the assumption just stated. If payment may be made to the guardian, and is made, the title is- by the statute itself divested out of the ward and invested in the redemptioner; and to the latter’s complete rehabilitation in that respect neither a conveyance by the ward, nor a conveyance by the guardian, nor yet a decree of chancery is at all necessary. And so, to repeat, we are entirely satisfied there was a perfected redemption of the land by Ewing from S. L. Tyson the moment the former paid the purchase money, with ten per cent per annum thereon, and all other lawful charges, to Mrs. M. M. Tyson as the guardian of said S. L. Tyson.

This title, thus passed into Ewing and by conveyance from him into E. B., J. T., N. F., and S. J. Chestnut, was a lawful title, it existed by relation before and at the time of the lease from Mrs. Tyson to the plaintiff, and it was paramount to the title conveyed by that lease. From and after the time this title became vested in said Chestnuts they were entitled to the possession of the land as against the lessee in said lease, and to evict him therefrom in recovering the posssession. They, however, had an election to accept attornment by him and to allow him to continue to hold the land for the period and upon the terms of the lease. It is contended for appellant that they in fact adopted this latter-course, and that consequently there has been no eviction of the plaintiff as lessee. This theory is based solely on the fact that the Chestnuts received from Mrs. Tyson the note executed by the plaintiff for the rent of the first year under the lease, and collected it from the lessee. The lease covered the years 1890, 1891, 1892 and 1893, possession under it being taken by plaintiff January, 1890. The rent obligation for each year was due and payable on the 1st day of October. The redemption was made September 8th, 1890. Some time between this date and October 1st ensuing the obligation for the rent of 1890 was delivered to the Chestnuts. At the same time Mrs. Tyson offered to deliver to them the other rent notes and the lease itself; but they refused to receive the lease or the other notes. It is manifest upon these facts that they did not intend by receiving the note about to mature and accepting payment of it from the plaintiff to ratify the lease to him and to accept attornment by him under its terms; and this, is further shown by the fact that they proceeded promptly to notify him that his possessory right had terminated, to demand possession of him, and, he failing to yield upon such demand, to bring their action of unlawful detainer against him. We are not at all inclined to hold them to a ratification and adoption of the lease upon the fact of their receiving and collecting the note for the rent of the year which was about spent at the time, and in the face of their obvious intention to the contrary. We give to that fact no other effect than this: The year being far advanced at the time of redemption, and crops being outstanding on the land, the lessee was entitled to them as emblements, and the redemptioners were entitled correlatively to the rent covering the period of occupation in the production and harvesting of the crops and maturing after redemption. And the receipt and collection by the Chestnuts of the note was no more than a recognition of the plaintiff’s undoubted right to the emblements, and their assertion of the consequent and dependent right to the current rent. The fact thus confined in its operation, involves nothing of ratification or continuance of the lease. Gardner v. Lanford, 86 Ala. 508.

. These views will also serve to indicate the grounds of our conclusion that the special pleas filed by the defendant were bad, and properly so held by the trial judge on demurrers, in their original forms and until an amendment, to the effect that the plaintiff attorned to said Chestnuts as tenant under the lease.

We are, therefore, to consider the question of eviction unencumbered by the suggestion of adoption of t'he lease by the Chestnuts. The complaint; after setting out the lease, avers the breach of its covenant for quiet enjoyment in two assignments, as follows:

“(1.) In and by the terms of said agreement, the defendant guaranteed to the plaintiff the peaceful and legal possession of the property therein described for the time therein specified under said agreement, plaintiff went into possession of the said rented premises and remained in possession and occupancy of the same until, to-wit, the 23d day of January, 1891, when he was evicted from said premises under the title of S. J. Chestnut, N. F. Chestnut, E. B. Chestnut and J. T. Chestnut, which said title was paramount to the title of defendant, and in existence before and at the time of making said, agreement above set forth.

“(2.) In and by the terms of said agreement the defendant guaranteed the plaintiff the peaceful and legal possssion of the premises therein described for the time therein specified. Plaintiff under said agreement went into possession of said land and remained on said rented premises until, to-wit, January 23d, 1891, when he was evicted from the same by the sheriff of Lowndes county, Alabama, under a writ of restitution, issued on a judgment rendered in the justice’s court of Brooks Beat, Lowndes county, Alabama, which said court had jurisdiction, against this plaintiff, in an action of unlawful detainer, wherein S. J. Chestnut, N. F. Chestnut, E. B. Chestnut and J. T. Chestnut were plaintiffs and this plaintiff was defendant. After the commencement of said unlawful detainer suit against this plaintiff, he notified the defendant of its pending, and requested her to defend the same; she failed to do so; judgment was rendered against [this] plaintiff in said cause, and he was evicted from said rented premises above set forth. Said judgment was obtained and said eviction was had under a title which was paramount to the title of the defendant, and in existence before and at the time of the execution of said agreement, all to the great damage,” &cv &c., of the plaintiff.

With t'he suggestion that the Chestnuts should be held to have adopted the lease and accepted attornment by plaintiff under it eliminated from the case, the evidence adduced on the trial without conflict supported the averments of each of the foregoing assignments of a breach of the covenant for peaceful and legal possession. To support the first assignment it was not at all necessary for the plaintiff to prove an actual forcible eviction. Showing a demand for possession by the Chestnuts claiming under a title which, as we have seen, was paramount, it was only necessary for him to show further that he yielded and surrendered possession in obedience to such demand and in recognition of the dominant character of the title under which the demand was made. All this appears in the case without reference to the proceedings in unlawful detainer; or, at least, with those proceedings considered as regular and valid out of the case, the evidence would be still affirmative and free from conflict in support of the first assignment of breach of the covenant; and as to that assignment the plaintiff was entitled to the general charge.

Under the second count, it was of course necessary for the plaintiff to prove the eviction as therein alleged, that is by the sheriff under a writ of restitution issued on the judgment for plaintiffs in the action of unlawful detainer against this plaintiff. And the evidence adduced is similarly full and without conflict in proving the eviction as laid in this assignment. But it is insisted that the court erred in several particulars in receiving this evidence against the objection of the defendant. So far as these objections proceed on the idea that the judgment rendered by the justice of the peace was void for want of jurisdiction of the defendant’s person, they are patently without merit. It is true that it does not appear by the docket and papers before the justice that the defendant was served with a summons to answer in that suit; but it is shown by evidence adduced without objection that he had notice of the suit more than six days before the day set for trial, and the judgment itself shows that he appeared in person at the trial and defended the action, pleading “not guilty” in bar thereof.

The objection to evidence of the unlawful detainer suit based on the ground that Mrs. Tyson, the present defendant, was not a party thereto, is equally untenable. The uncontroverted evidence showing that the de fendant in that suit notified her of its pendency and to appear therein and defend against it, the judgment was as binding upon her as if she had appeared or had been originally a party. — Chestnut v. Tyson, 105 Ala. 149, s. c. 53 Am. St. Rep. 101, and notes.

The judgment is a part of the evidence of plaintiff’s eviction as laid in the complaint, and whether it shows that the right upon which it was rendered was paramount to plaintiff’s right under the lease was immaterial as affecting its admissibility. The eviction shown by the unlawful detainer proceeding, that it was under title paramount might well be proved aliundi.

What we have said in respect of the suggestion that the Chestnuts had ratified the lease will suffice to indicate the ground of our conclusion that the judgment in the unlawful detainer suit does not show that the relation of landlord and tenant existed between the parties to that suit, nor that “there could not have been an eviction under title paramount in that suit.” These grounds of objection are untenable.

I-Iarbin, the notary public and ex officio justice of the peace, had the same jurisdiction of the unlawful detainer action as a justice of the peace elected for the precinct would have had.

So far as the objections take had relation to the return purporting to have been indorsed on the writ of restitution by the sheriff, we need not pass upon it. If that indorsement was improperly admitted, it was error without injury to the defendant, since the fact that plaintiff was evicted by said sheriff under a writ of restitution issued on the judgment in the unlawful detainer action was proved lay other evidence to which no objection was made, and the truth of which was not at all challenged or controverted in the case.

The foregoing will suffice to dispose of all exceptions taken by the defendant below to rulings bearing upon the right of plaintiffs to recover upon each averment of breach of the covenant; and it only remains to consider those rulings which have relation to the amount of the recovery, and to which exceptions were reserved.

The measure of damages for the breach of a covenant for possession and enjoyment in a lease, where the rent has not been paid, is the difference between the value of the leasehold at the time of the breach and the amount of the rents reserved covering the period of non-enjoyment of the premises under the lease. We regard this as too well settled by our own and the authorities generally, as well as too obviously just upon principle to require any discussion at our hands.- — Snodgrass v. Reynolds, 79 Ala. 452, and citations; Chestnut v. Tyson, 105 Ala. 149, (and notes to) s. c. 53 Am. St. Rep. 116 et seq.

The testimony of the plaintiff, that “at the time of the eviction the market value of the rented premises was $1,000 or $1,200 over and above the rent he had agreed to pay in the lease therefor,” was not subject to any of the objections interposed to it. Such value is claimed in the complaint; the measure of damages was not the difference between the rent reserved and the value of the lease at its date, and the fact that the rent reserved for the period after eviction had not been paid did not restrict the recovery to nominal damages.

Postal cards sent out from time to time by cotton factors to their correspondents or customers stating the price of cotton are not “prices current or commercial lists printed at a commercial mart,” within section 2779 of the Code of 1886, (Code of 1896, §1810), and are not admissible in proof of the prices stated in them. The court properly excluded the cards offered in evidence by defendant purporting to have been sent to McWhorter by Lehman, Durr & Co.

The rulings of the trial court on requests for instructions bearing upon the measure of damages were in confo3 mity to the rule as we understand and have declared it.

The charge requested by the defendant, to the effect tli at at the time of the lease the title to the land was in 8. L. Tyson, could, had it been given, have served no other end in the case than to mislead and confuse the jui*y. While the legal title was then in S. L. Tyson, for the purposes of this case it was potentially in the ChestJiUts, as the redemption by Ewing and his conveyance to the Chestnuts carried the title thus in them back by relation to and before the time of lease made.

The charge requested to the effect that at the' time of the eviction the legal title Avas in S. L. Tyson Avas asked on the theory, which we have held to be nnsonnd, that redemption from S. L. Tyson was not effected.

We find no error in the record, and the judgment of the circuit court must be affirmed.

Affirmed.