Buchmann v. Callahan

• Citation: 222 Ala. 240,131 So. 799
• Decision Date: 06 November 1930
• Docket Number: 6 Div. 677.
• Parties: BUCHMANN ET AL. v. CALLAHAN.
• Court: Supreme Court of Alabama

131 So. 799

222 Ala. 240

BUCHMANN ET AL. v. CALLAHAN.

6 Div. 677.

Supreme Court of Alabama

November 6, 1930

Rehearing Denied Jan. 22, 1931.

Appeal from Circuit Court, Cullman County; W. W. Callahan, Judge.

Action in trover by T. J. Callahan, Jr., against Carrie G. Buchmann as executrix of the will of Fred J. Buchmann, deceased, and another. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals.

Reversed and remanded.

A. A Griffith and Earney Bland, both of Cullman, for appellants.

F. E St. John, of Cullman, for appellee.

GARDNER J.

Appellee sued appellants in trover for conversion of certain crops grown by one McCoy in the year 1924. The cause was tried before the court without a jury, resulting in a judgment for the plaintiff, from which defendants prosecute this appeal.

McCoy was the owner of the land on which the crops were grown and in possession when he executed to plaintiff in March, 1924, a mortgage on the crops for that year. He had, however, some years previously, on January 15, 1920, executed a mortgage to defendant Martin on the land to secure a note due January 15, 1921, which mortgage was duly recorded on the day of its execution. Said Martin, on April 29, 1924, filed a bill for the foreclosure of his mortgage on the land of January 15, 1920, and on August 2, 1924, a final decree was rendered, the land ordered sold, and a sale thereof to Martin was confirmed September 24, 1924, a deed duly executed, and Martin was placed in possession September 28, 1924, by writ duly issued out of the equity court. It was under such possession the crops were gathered, for the conversion of which this suit was brought.

In addition to the foregoing facts, it appears that Martin, in August, 1921, and after default in the payment of the mortgage, advertised the land for sale and sold the same under the power of the mortgage on October 1, 1921, becoming the purchaser at his own sale, and auctioneer's certificate issued to him but no deed was ever executed. McCoy continued in possession, no demand having been made for possession or for rent, and none promised. It was under these circumstances that on August 4, 1923, McCoy executed the instrument purporting to be a contract or note for $200; all reference to rents were in printed form, but written in the body of the instrument were the following words: "This note is given as collateral to past due interest and when paid shall be applied as such." This note was never paid and no demand therefor ever made or anything further said about rent by either party, McCoy remaining in possession. The foreclosure proceedings made no reference to any previous foreclosure under the power and McCoy made no defense thereto. At the judicial sale, the land brought less than the mortgage debt and there was a deficiency decree rendered against McCoy. The mortgage of McCoy to Martin contained the provision that upon default in the payment of the debt secured thereby the mortgagee "shall have the power to take immediate possession of the said property, and either with or without taking actual possession of the same" sell the property at public outcry upon due advertisement.

The evidence very clearly shows that Martin did not want the place, but only the money due on the mortgage, and permitted McCoy to remain in possession after the foreclosure of 1921 with the hope of having payment made on the debt, and that in fact a conversation to like effect took place at the time of the execution of the note of August 4, 1923. The trial judge reached the conclusion, and so held, that at the time of the execution of the mortgage by McCoy to plaintiff, McCoy was a tenant at will of Martin. We concur in this conclusion and think it clearly established by the proof.

In speaking of relationship of mortgagor and mortgagee as to real estate, in some of the law books and adjudicated cases the mortgagor is designated a tenant at will and in others as a tenant at sufferance. The distinguishing feature between the two is the want of consent to the continued occupancy of the tenant. A tenant at sufferance enters lawfully and holds over wrongfully without the landlord's assent or dissent. But a tenant at will holds over by the landlord's permission. 35 Corpus Juris, p. 1135. "It is *** true that a permissive occupation for an indefinite period, without reservation of rent, is by implication a tenancy at will." Rutledge v. White, 206 Ala. 329, 89 So. 599. To like effect, see Bush v. Fuller, 173 Ala. 511, 55 So. 1000, and Wright v. Graves, 80 Ala. 416. The relationship between the mortgagor and mortgagee as recognized in this jurisdiction is well expressed by this court in Farris & McCurdy v. Houston, 74 Ala. 162, as follows: "Whatever may be the theory of a mortgage of lands elsewhere recognized, it is settled in this State, by a line of decisions which have become essential to the safety of titles, that it is more than a security for a debt, or a mere chattel interest. 'It creates a direct, immediate estate in lands; as against the mortgagor, and those claiming in his right, a fee simple, unless otherwise expressly limited. The estate is conditional-annexed to the fee is a condition which may defeat it. The mortgagee, if in the conveyance there is not a reservation of possession to the mortgagor, until default in the performance of the condition, has the immediate right of entry, and may eject the mortgagor or his tenants. If the mortgagor is permitted to remain in possession, he is the mere tenant at will of the mortgagee. After the law-day, and default in the performance of the condition, at law, the estate is absolutely vested in the mortgagee-the estate is freed from the condition annexed to it. Nothing remains in the mortgagor but the equity of redemption, of which courts of law take no notice."' See, also, Welsh v. Phillips, 54 Ala. 309, 25 Am. Rep. 679; American Mortgage Co. v. Turner, 95 Ala. 272, 11 So. 211; Thompson v. Union Warehouse Co., 110 Ala. 499, 18 So. 105; Hughes & Tidwell Supply Co. v. Carr, 203 Ala. 469, 83 So. 472; Metcalf v. Clemmons, 200 Ala. 243, 76 So. 9; Allen v. Sands, 216 Ala. 106, 112 So. 528; Lamar v. Johnson, 16 Ala. App. 648, 81 So. 140; 2 Jones on Mortgages (8th Ed.) §§ 891 and 860; 35 Corpus Juris, 1134, 1135.

There are expressions in some of our cases, notably Mortgage Co. v Turner, supra, to the effect that the mortgager is a mere tenant at sufferance of the mortgagee, while other cases (illustrated by Hughes & Tidwell Supply Co. v. Carr, supra, and Lamar v. Johnson, supra) designate him as a tenant at will. But these expressions are to be viewed in the light of the facts and circumstances in each case, and in view of the line of demarkation between a tenant at will and by sufferance. If the mortgagor is permitted to remain in possession he is a tenant at will, but if his possession is without the mortgagee's assent or dissent, then he is a tenant at sufferance merely. 35 Corpus Juris, 1135. As said in Welsh v. Phillips,...