16 Ala. 111 (Ala. 1849), Smith's Ex'rs v. Houston

• Citation: 16 Ala. 111
• Opinion Judge: DARGAN, J.
• Party Name: THE EXECUTORS OF SMITH v. HOUSTON, USE, &c.
• Attorney: L. P. WALKER, for plaintiffs in error: KENNEDY, for defendant made the following points:
• Court: Alabama Supreme Court

Page 111

16 Ala. 111 (Ala. 1849)

THE EXECUTORS OF SMITH

v.

HOUSTON, USE, &c.

Supreme Court of Alabama

January Term, 1849

Error to the Circuit Court of Lauderdale. Tried before the Hon. Sidney C. Posey.

L. P. WALKER, for plaintiffs in error:

1. It seems to me to be clear that Benham, for whose use the suit was brought, could not use the deed executed by himself to Houston, as evidence in his favor, the more especially as it was dated after Smith's occupancy commenced-- for this would be making evidence for himself.

2. It has always been understood, that even in a court of law, you may impeach a deed for fraud in its execution. But in effect, the court below, ruled against this doctrine, as is shown by bill of exceptions.

3. To entitle the plaintiff to the action for use and occupation, the tenant must have the right of occupying and using the premises. Crabb's Law of Real Pro. Law Lib. for Oct. 1846, p. 184, note, 1; 3 Wendell, 219.

4. This action is founded on contract, and does not apply to an adverse tortious holding. Law Lib. Oct. 1846, p. 185; 10 Ala. Rep. 248. Because that would be to determine the title to the land in an action of assumpsit. 11 Pick. Rep. 9.

5. There must either be an express promise which is evidence of tenancy, to which case the action is confined, or an entry by consent of the landlord, from which a tenancy is implied. Crabb's Law Real Pro. 185, note 4.

6. Where the premises have been occupied without the consent of the owner, the state of landlord and tenant does not exist, and an action for use and occupation cannot be sustained. Curtis v. Treat, 21 Maine Rep. 525. The case of Davidson v. Ernest, 7 Ala. 818, does not affect this case upon the facts.

KENNEDY, for defendant made the following points:

1. An action of assumpsit for use and occupation will lie to recover the value of the rent of land, upon an implied promise. Davidson v. Ernest, 7 Ala. 817.

2. A deed given by a sheriff upon a previous sale on execution relates back, and in judgment of law is executed at the time of sale. Jackson, ex dem. &c. v. Ramsay, 3 Cow. 75.

3. A sheriff's deed cannot be impeached on a collateral issue, except for fraud in its execution. Love & Williams v. Powell, 5 Ala. 58; Ware v. Bradford, 2 Ala. 676.

DARGAN, J.

The deed of the sheriff to Houston was properly admitted as evidence to show the title in him, notwithstanding the suit is brought for the use of Benham, who, as sheriff, executed the deed. Because the suit is for the use of Benham, the deed, which is the evidence of Houston's title, does not become illegal testimony, nor is its effect as proof destroyed or impaired.

Nor is there any error in the rejection of the evidence offered by the defendants below for the purpose of impeaching the deed for fraud. The land, previous to the sale by the sheriff, belonged to Dillahunty. Smith, the defendant, had no interest either in the land or in the judgments under which it was sold, but was an entire stranger, without any interest in the subject matter of the deed. The parties in interest seem to be content with the transaction, and it is certainly incompetent for a mere stranger, without interest in the subject matter of the deed, to impeach it for fraud, even if it were permissible for the defendant in the judgment to do so, when the deed is...