Brown v. Floyd
| Decision Date | 30 June 1909 |
| Citation | 163 Ala. 317,50 So. 995 |
| Parties | BROWN ET AL. v. FLOYD. |
| Court | Alabama Supreme Court |
Rehearing Denied Dec. 16, 1909.
Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.
Action by Mary L. Floyd against R. E. Brown and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
Lackey & Bridges, for appellants.
D. H Riddle, for appellee.
Plaintiff a woman, sues defendants in trespass quare clausum fregit vi et armis as to lands described in the complaint. The defendant R. E. Brown is sued jointly with the other defendants, and is sued individually and as administrator.
The trespass as alleged and proved was committed by the said R E. Brown et al. after the death of the intestate of the said Brown. As for such trespass, the personal representative is liable individually, but not in his representative capacity. The estate of a deceased prson cannot be held liable for the torts of the personal representative. The separate demurrer of R. E. Brown as administrator should have been sustained to the complaint. It stated no cause of action against him in that capacity. The complaint should have been amended in this respect. Shorter v. Urquhart, 28 Ala. 360; Daily's Adm'r v. Daily, 66 Ala. 266; Spotswood v. Bentley, 132 Ala. 266, 31 So. 445.
The plaintiff in this case could not recover damages as for rent of the lands trespassed upon. It is shown that she left the premises at the request of a third party, and not on account of the trespass or wrong committed by these defendants. Consequently she could not recover in this action, as damages, the rent of the lands, or the value thereof, after she abandoned them at the request of a third party.
While the possession of one tenant in common is the possession of all, this is not available as a defense for trespass vi et armis committed by one tenant in common against the possession and person of another, who is at the time in the actual possession, claiming the entire property in his sole right, and is disputing the title of his co-tenant. If the defendants were tenants in common with the plaintiff of the lands in question (as they claim they were), they should have resorted to the law to have declared and enforced their rights as such tenants in common.
They should not have attempted to assert and enforce their rights by force and contrary to law, as all the evidence shows they did. If the relation of tenant in...
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