Childress v. Smith

• Decision Date: 05 October 1933
• Docket Number: 5 Div. 143.
• Citation: 227 Ala. 435,150 So. 334
• Parties: CHILDRESS v. SMITH.
• Court: Alabama Supreme Court

150 So. 334

227 Ala. 435

CHILDRESS v. SMITH.

5 Div. 143.

Supreme Court of Alabama

October 5, 1933

Rehearing Denied Nov. 2, 1933.

Appeal from Circuit Court, Chilton County; F. Loyd Tate, Judge.

Action of ejectment by C. R. Childress against Cora Dahl Smith. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

Lawrence F. Gerald and Raymond C. Smith, both of Clanton, for appellant.

Reynolds & Reynolds, of Clanton, for appellee.

FOSTER Justice.

The substance of the facts necessary to understand the chief question in the case is as follows: Collins rented land from defendant for 1931. There was then an outstanding mortgage on it executed by defendant. Collins during the term of his lease, and on October 16, 1931, procured a transfer to himself of the mortgage, and, still during such term and on the 28th day of November, 1931, foreclosed the mortgage under the power, and plaintiff (who was incidentally the father-in-law of Collins, and lived on the place with him) became the purchaser. The defendant, landlord, procured possession from Collins about February 9, 1932, by a suit. There is a first mortgage on it to the Federal Land Bank. This suit was begun by plaintiff, the purchaser at the foreclosure sale, on September 28, 1932, after defendant had procured possession, and she was then in possession. The court gave the affirmative charge for defendant.

When the action is such as to authorize a trial of titles, a tenant, though in possession, in a suit with the landlord, is not denied the right to show that the landlord's title has expired or been extinguished, either by operation of law or by his own act, after the creation of the tenancy, or that there is a change of the landlord's title for the worse after the tenant has entered into the contract. Sadler v Jefferson, 143 Ala. 669, 39 So. 380; Hammond v. Blue, 132 Ala. 337, 31 So. 357; Davis v. Williams, 130 Ala. 530, 30 So. 488, 54 L. R. A. 749, 89 Am. St. Rep. 55; Farris v. Houston, 74 Ala. 162.

But it is claimed, and the trial court acted favorably on that claim, that a tenant during his term cannot acquire the title adverse to that of his landlord and assert it after a surrender of possession. Reliance is had on Bailey's Adm'r v. Campbell, 82 Ala. 342, 2 So. 646, and Jackson v. King, 82 Ala. 432, 3 So. 232.

The principle first above stated, as shown by the authorities we there cited, is consistent with that also referred to in them, that the tenant, while in possession, is estopped to denying the title of the landlord as it existed at the inception of the tenancy. He cannot, while so in possession and to defeat a suit against him for possession, show that there was such superior outstanding title, though he may have acquired a transfer of it to himself, and though the suit be of a nature which admits of a contest of titles. It is upon that principle that the cases first cited are consistent with that of Bailey's Adm'r v. Campbell, supra, and Jackson v. King, supra. But those cases did not have the effect of holding, though there may be some misleading language in them, that a tenant, during the term of the lease, and while in possession, cannot acquire a title outstanding and superior to that of his landlord, and claim the benefit of it, after he has surrendered the possession of the land to his landlord. But the principle is that "the landlord can only be required to litigate title with tenant upon the vantage ground of possession." He must first surrender the possession of the premises and regain it afterwards by an action, if his claim is based upon a right adverse to the landlord at the inception of the lease. Houston v. Farris, 71 Ala. 570; Norwood v. Kirby's Adm'r, 70 Ala. 397; Barlow v. Dahm, 97 Ala. 414, 12 So. 293, 38 Am. St. Rep. 192; 1 Tiffany on Land and Tenant, p. 461; 1 Tied. Real Property, § 199.

We may concede that a purchase by the tenant of an outstanding mortgage on the land should be held to be for the protection of his possession, as said in respect to a tax title, and that such a purchase is similar to that of a tenant in common, when the mortgage covers the entire title, so that it inures to the benefit of the other tenants in common, when it is purchased by one of them. But that does not mean that the landlord may have the benefit of the right thus acquired by the tenant without reimbursing him for his outlay.

It is said in Lehman, Durr & Co. v. Moore, 93 Ala. 186, 190, 9 So. 590, with respect to the status of tenants in common, when one has redeemed the common property from a mortgage on it, that the others have the right to rehabilitate their rights in the property by contributing an aliquot share of the amount paid by their co-tenant. Jones v. Matkin, 118 Ala. 341, 24 So. 242.

In Jones v. Matkin, supra, on page 348 of 118 Ala., 24 So. 242, 244, there is a quotation from Pomeroy on Equity, applicable to such situation, to the effect that, when such a payment is made, "he thereby becomes an equitable assignee thereof, and may keep alive and enforce the lien so far as may be necessary for his own benefit: he is subrogated to the rights of the mortgagee to the extent necessary for his own equitable protection." And in Donnor v. Quartermas, 90 Ala. 164, 170, 8 So. 715, 24 Am. St. Rep. 778, it is said that, when a cotenant purchases from the state an outstanding tax title, it inures to the equal benefit of the others, and that such purchaser can only use such tax title as a basis for compelling the others to reimburse him for their prorata share of his outlay.

But the rule is that, when a cotenant redeems the common property, he "is entitled to hold the entire estate until he shall be reimbursed what he has paid beyond his just proportion. He is considered as assignee of the mortgage, and stands, after redemption, in the place of the mortgagee in relation to the other owners of the equity." Francis v. White, 166 Ala. 409, 412, 52 So. 349, 350.

And in Lehman, Durr & Co. v. Moore, supra, at page 190 of 93 Ala., 9 So. 590, 592, it is said...