Greenwood v. Bennett

• Decision Date: 16 November 1922
• Docket Number: 6 Div. 589.
• Citation: 95 So. 159,208 Ala. 680
• Parties: GREENWOOD ET AL. v. BENNETT.
• Court: Alabama Supreme Court

95 So. 159

208 Ala. 680

GREENWOOD ET AL. v. BENNETT.

6 Div. 589.

Supreme Court of Alabama

November 16, 1922

Rehearing Denied Jan. 25, 1923.

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action of unlawful detainer by Arthur Greenwood and others against Angelo Bennett. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

Erle Pettus, of Birmingham, for appellants.

Weatherly Birch & Hickman, of Birmingham, for appellee.

Statement.

THOMAS J.

The action was unlawful detainer, and resulted in judgment for defendant. The property in question was leased by C. H. Nabb the landlord, to defendant, Bennett, on November 19, 1918. The lease contained the following provisions:

"Witnesseth, that the lessor does hereby rent and lease unto the lessee the following premises in the city of Birmingham, Ala., viz. that certain storehouse and premises known as No. 411, No. Twentieth street, about 17 feet by 75 feet in size, for occupation by him as a fruit stand and general store, and not otherwise, for and during the term of three years, to wit, from the 1st day of October, 1918, to the 30th day of September, 1921. ***

"The terms and conditions typewritten on the back hereof are hereby made a part of this lease as fully as if set forth in the face hereof, and shall be binding upon both parties hereto. ***"

On the reverse or back of said lease is the following:

"1. The landlord reserves the right to terminate this lease at any time after the expiration of the first year thereof upon six months' notice in writing given the said lessee, upon a bona fide sale of said premises having been made by the landlord. 2. The lessee does hereby pay to the lessor six months' rental in advance on said premises. ***"

"For value received, the undersigned hereby transfers and assigns to Arthur and Harry, and Spiro, and James Greenwood, all his rights in and under the foregoing lease together with the right to the rents to be paid under said lease, without recourse on him. Executed as of October 1, 1919. C. H. Nabb."

The building embracing the store leased to Bennett was leased by Nabb to the Greenwoods (plaintiffs in the court below, appellants here) on July 25, 1919. In that lease was the stipulation that the premises are leased to September 30, 1926.

"It is understood and agreed that J. H. F. Moseley has a lease on No. 411 1/2 North Twentieth street (including second floor of both No. 409 and No. 411 North Twentieth street), which expires September 30, 1920, and that Angelo Bennotos has a lease on No. 411 North Twentieth street, which expires September 30, 1921, and that said last lease may be terminated by giving six (6) months' notice, in the event of a sale of the property described therein. Said leases are to be assigned to the lessees herein by the lessor herein as of October 1, 1919, and said lessees shall thereupon succeed to all the rights of the lessor in said leases, and in the event of a sale of the premises hereby leased the term of this lease may, at the option of the purchaser, be reduced so as to expire five (5) years and six (6) months from the date such purchaser shall give notice to the lessees herein of his desire to so reduce said term. Subject to the terms of their respective leases, said Moseley and Bennotos shall have the right of possession of the premises leased by them respectively until the end of the term of their respective leases, or until the same shall be terminated pursuant to provisions therein."

On that date, appellee being in possession of a portion of the premises-that part in dispute known as No. 411 North Twentieth street, Birmingham-and Nabb having transferred all his rights under the lease, together with rights to the rents (as of October 1, 1919), in August, 1919, paid rent to Nabb "up to October 1, 1919," and was instructed by Nabb to pay the rent accruing after October to the Greenwoods, which he did to the time the controversy arose as to the right of termination of his lease.

The whole property was sold on October 1, 1919, by the owner, C. H. Nabb, to S. F. and F. E. Nabers, who on the 10th day of that month addressed a communication to the Greenwoods as follows:

"You are hereby notified that the purchasers of said property desire to exercise the option of reducing said lease and hereby give notice to you as lessees of their desire to so reduce said term and hereby give notice that the term of said lease is reduced to five years and six months from the date of this notice."

Which expiration was October 10, 1924. This notice was not admitted in evidence on defendant's objection, to which exception was reserved.

On the same day said purchasers gave notice to:

"Messrs. Arthur Greenwood, Harry Greenwood, Spiro Greenwood, James Greenwood. You are hereby authorized to give notice to Angelo Bennett to vacate the premises subleased by him, namely, that certain storehouse and premises known as No. 411, No. Twentieth street, about 17 feet by 75 feet in size, in accordance with all the terms and stipulations of the original lease from C. H. Nabb to Arthur Greenwood, Harry Greenwood, Spiro Greenwood and James Greenwood, and the terms of the sublease. This the 10th day of October, 1919. Frank E. Nabers. Sam'l F. Nabers."

On the following day notice was given defendant as follows:

"You are hereby notified that C. H. Nabb has sold and by deed conveyed to Drs. S. F. and F. E. Nabers the land including the building known as Nos. 490 [no doubt meaning 409], 411 and 411 1/2 North Twentieth street.

"According to the provision in our lease, 'the landlord reserves the right to terminate this lease at any time after the expiration of the first year thereof upon six months' notice in writing given the said lessee.'

"You are hereby notified that the purchasers of said property desire to exercise the option of reducing said lease, and hereby give notice to you through us of their and our desire to reduce said term, and hereby give notice that the term of said lease is reduced to six months from the date of this notice.

"Executed in duplicate this 11th day of October, 1919. Harry Greenwood, Arthur Greenwood, by S. Greenwood."

And on March 10, 1920, notice was given defendant that his lease expired with the month "as per agreement in your [his] lease." Pending other negotiations (by the lessees, Greenwoods, with the tenant Bennett) if he saw his "way out to remain there, the rent will be $200 per month temporary until further notice, beginning with the month of April, 1920." And on June 5, 1920, defendant was given notice that:

"Your lease to the premises now occupied by you, namely 411 North Twentieth street, Birmingham, Ala., having expired, and your possessory rights in said premises having terminated, demand is hereby made upon you for immediate possession of said premises, and for payment of rent due from the expiration of your lease. This the 5th day of June, 1920. Arthur Greenwood, Harry Greenwood, Spiro Greenwood, James Greenwood, by Erle Pettus, as Attorney."

The service of the several notices, the fact that after October 1, 1919, defendant paid rent to one of the Greenwoods, as he was directed by Nabb, that he went into possession of the premises in question after November 19, 1918, and retained same to and at the date of the trial in the circuit court, are uncontroverted facts, and on June 16, 1920, the unlawful detainer suit was instituted.

Opinion.

If the notice and demand may be given by Greenwood, that given was sufficient for the purposes of an unlawful detainer as a substantial compliance with the statute, though not signed by all but a majority of the Greenwoods. Code, § 4263; Johnson v. Blocton-Cahaba Coal Co., 205 Ala. 373, 375, 87 So. 559; Eddins v. Galloway Coal Co., 205 Ala. 361, 87 So. 557; Ross v. Gray Eagle Coal Co., 155 Ala. 250, 46 So. 564; Kennedy v. Hitchcock, 4 Port. 230; Hilliard v. Carr, 6 Ala. 557; Barnewell v. Stephens, 142 Ala. 609, 38 So. 662; Shepherd v. Parker, 157 Ala. 493, 47 So. 1027; 26 C.J. 88, p. 838. One tenant in common may sue for and recover the entire tract in his own name. Lecroix v. Malone, 157 Ala. 434, 47 South. 725; Blakeney v. Du Bose,

167 Ala. 627, 52 So. 746; Hooper v. Bankhead, 171 Ala. 626, 54 So. 549. However, these authorities were in ejectment, against a person not claiming under a tenant in common: in such case one tenant in common may recover the entire tract in this own name.

If before the maturity of the note given for the rent, the reversion of the freehold passes to another, the rent passes unless such right or the right to collect it is reserved to the grantor. Deposit Bank v. Caffee, 135 Ala. 208, 33 So. 152; Ala. Gold Life Ins. Co. v. Oliver, 78 Ala. 158; Coffey v. Hunt, 75 Ala. 236; Westmoreland v. Foster, 60 Ala. 448; Tubb v. Fort, 58 Ala. 277; English v. Key, 39 Ala. 113. The grantor, Nabb, instructed the tenant, Bennett, to pay after-accruing rent to the Greenwoods, and this he did. An attornment by the tenant to a subsequent purchaser is effectual as between themselves; the payment of rent as per the terms of the lease was evidence of or tended to show attornment; no evidence being introduced to the contrary. Birmingham Fuel Co. v. Boshell, 190 Ala. 597, 599, 67 So. 403; Howard v. Jones, 123 Ala. 488, 26 So. 129; Perkerson v. Snodgrass, 85 Ala. 137, 141, 4 So. 752; Houston v. Farris, 71 Ala. 570; McMillan v. Otis, 74 Ala. 560; Knox v. Easton, 38 Ala. 345; Edwards v. L. & N. R. Co., 202 Ala. 463, 80 So. 847. Having attorned to the plaintiffs, the tenant as defendant is estopped to deny or question the title or right of a purchaser to whom he had attorned to maintain unlawful detainer after that attornment. Hill v. Harris, 179 Ala. 614, 619, 60 So. 917; Code, § 4731. There is no uncertainty of the...