Dahm v. Barlow

• Decision Date: 24 June 1891
• Citation: 93 Ala. 120,9 So. 598
• Parties: DAHM ET AL. v. BARLOW ET AL.
• Court: Alabama Supreme Court

9 So. 598

93 Ala. 120

DAHM ET AL. v. BARLOW ET AL.

Supreme Court of Alabama

June 24, 1891

Appeal from circuit court, Mobile county; W. E. CLARKE, Judge.

Action of ejectment by John Dahm and Timothy Meaher against Barlow &amp Co. Verdict and judgment for defendants, and plaintiffs appeal. Affirmed.

The court refused an offer by plaintiffs of a copy of a letter written by their attorneys to the defendants on November 12th, notifying them to vacate and surrender the possession of the property, and informing them that they had accepted the rent paid by the defendants on November 4, 1890, as rent due under the written contract, and not otherwise.

Wm. C. Richardson and Henry Chamberlain for appellants.

Faith & Ervin, for appellees.

CLOPTON J.

In order to establish their title to the land, to recover which appellants bring the statutory real action, they introduced in evidence a quitclaim deed made by the Bank of Mobile, May 3, 1859, conveying to James M. Meaher and Timothy Meaher "five undivided twelve parts" of a tract of land containing about 1,300 acres, which includes the land described in the complaint; a conveyance executed by Timothy Meaher of this and a large quantity of other lands to John Dahm December 2, 1889, under an order of the chancery court a deed from Dahm, August 30, 1890, conveying an undivided half interest in all the lands includes in the conveyance of Timothy Meaher to James K. and Augustine Meaher; and a conveyance by them, vesting in Timothy Meaher an estate for and during his natural life in their half interest. And in order to establish their right of possession plaintiffs introduced in evidence a written lease of the land sued for by J. M. and T. Meaher to defendants for the term of five years from August 1, 1883, at an annual rental of $150, payable in quarterly installments, with the right or privilege of renewal for another term of five years; and also a renewal or extension, in accordance with this provision of the contract of lease, for another term of five years, commencing August 1, 1888; also a deed made by James K. Glennon, May 17, 1890, conveying to defendants an undivided one-third interest in the land in controversy; also a bill in chancery, filed by defendants, October 1, 1890, seeking a sale of the land for partition among the tenants in common; and a notice signed by Dahm, October 9, 1890, to defendants, to quit within 15 days. James Meaher having died before the expiration of the original term, Timothy Meaher, who had been appointed his administrator, and was the surviving co-tenant, made the renewal of the lease. The renewal having been signed by his agent, who was not shown to have been authorized in writing, plaintiffs contend that it is void under the statute of frauds. This contention is not supported by the facts. It appears that defendants, having been put in possession under the original lease, continued in possession under the renewal, and have paid the quarterly installments of rent to November 1, 1890. Possession and payment of the installments withdraw the lease from the influence and operation of the statute of frauds, bringing it within the express terms of the exception to the statute. Code, § 1732; Shakespeare v. Alba, 76 Ala. 357. They further contend that Timothy Meaher, as administrator, had no authority to extend the lease, so far as concerned James M. Meaher's interest, for a period exceeding the term of his administration; and that it was terminated when his entire real estate was sold under the decree of the chancery court. Without conceding the correctness of the proposition, it is a sufficient answer that the administration is not shown to have been yet settled; and, if it had, the administrator, in renewing the lease, simply performed a covenant made by his intestate in his lifetime. They also insist that if the lease be valid, defendants, by purchasing and accepting the conveyance from Glennon of a one third interest in the land, and filing the bill in chancery, forfeited the lease. By the stringent rules of the common law, which have their origin in the military nature of the feudal tenure, almost any act of the tenant inconsistent with his fealty to the landlord worked a forfeiture of his term. While the relation of landlord and tenant is preserved in its integrity, these rules have been greatly modified by statutes, and some of the methods by which a tenant forfeited his term at common law are inapplicable under our institutions, and have not obtained in this country. Says Chancellor Kent: "But these forfeitures are very much reduced in this country by the disuse...