Hill v. Harris

• Decision Date: 23 January 1913
• Citation: 60 So. 917,179 Ala. 614
• Parties: HILL v. HARRIS.
• Court: Alabama Supreme Court

60 So. 917

179 Ala. 614

HILL v. HARRIS.

Supreme Court of Alabama

January 23, 1913

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by Shelley Harris against Flora Hill. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The following charges were given at the instance of the plaintiff:

(b) "If you find from the evidence that Flora Hill surrendered possession of the land sued for to Mr. Tidwell or Hughes & Tidwell, and agreed to vacate the premises on February 20, 1908, then I charge you that act would amount to an abandonment of possession, and the estate of defendant thereupon became determined; and plaintiff would be entitled to recover if Hughes & Tidwell transferred their possession to Shelley Harris, the plaintiff."

(c) "I charge you, gentlemen of the jury, that it makes no difference from what source Flora Hill obtained this land; if you find from the evidence that Flora Hill surrendered possession of this land to Hughes & Tidwell before this suit was brought, you must find for plaintiff, provided you are reasonably satisfied from the evidence that Hughes & Tidwell conveyed this land to plaintiff."

(d) "I charge you, gentlemen of the jury, that the manner in which this land was sold and purchased at the mortgage sale can have nothing to do with your verdict in this case. It is your duty to ascertain from the evidence in this case who has the right to the possession of this land; and if you are reasonably satisfied from the evidence that Flora Hill surrendered possession of this land to Hughes & Tidwell before the commencement of this suit you must find for the plaintiff, provided you further find that Hughes & Tidwell transferred the land to this plaintiff before the commencement of this suit."

(e) "I charge you, gentlemen of the jury, that in rendering your verdict you are not to consider the ownership or title of the land, as the only question in this case is that of the right to possession of the land; and if you believe from the evidence that Flora Hill surrendered possession to Hughes &amp Tidwell, and that Hughes & Tidwell transferred the land to Shelley Harris, their possession became his possession, and he would be entitled to recover in this case."

(f) "If you find from the evidence that the defendant, being in possession of the land sued for, on or about the 9th or 10th of February, agreed to surrender possession, and to vacate or abandon the premises sued for on or about February 20, 1908, then the relation of landlord and tenant was thereby created between the said Hughes & Tidwell and the defendant; and if you further find that said Hughes & Tidwell subsequently thereto sold and transferred the lands sued for to Shelley Harris, the plaintiff, then the relation of landlord and tenant was thereby created between Harris and defendant, and in that event plaintiff would be entitled to recover."

(g) "I charge you, gentlemen of the jury, that it was not necessary for Flora Hill to pay rent to Hughes & Tidwell, in order to surrender possession of the land to them; but if you are reasonably satisfied from the evidence that Flora Hill told Fred Tidwell, before the commencement of this suit, that she surrendered possession to him, and you are reasonably satisfied that she did surrender possession of the land, as he says she did, and you further believe that Hughes & Tidwell, before the commencement of this suit, conveyed the land to Shelley Harris, your verdict must be for the plaintiff."

Wert & Lynne, of Decatur, for appellant.

W. T. Lowe and Tidwell & Sample, all of New Decatur, for appellee.

SOMERVILLE J.

Appellee recovered of appellant the possession of certain land in an action of unlawful detainer begun on February 28, 1908. The principal questions presented by the appeal relate to the question of the plaintiff's prior possession of the land sued for, and its sufficiency for the maintenance of the action.

The following facts are shown without dispute: The defendant was the owner of the land and in possession of it, and conveyed it by mortgage deed, in December, 1906, to one C. L. Price. About November 28, 1907, Hughes & Tidwell, a partnership purchased this mortgage from Price, and advertised the land for sale on November 30, 1907. At this foreclosure sale Tennis Tidwell, as attorney and agent for Hughes &...