Linam v. Jones

• Decision Date: 23 April 1902
• Citation: 33 So. 343,134 Ala. 570
• Parties: LINAM v. JONES. [a1]
• Court: Alabama Supreme Court

33 So. 343

134 Ala. 570

LINAM v. JONES. ^[a1]

Supreme Court of Alabama

April 23, 1902

Appeal from circuit court, Monroe county; Jno. C. Anderson, Judge.

Action by J. B. Jones against Mary E. Linam. Judgment for plaintiff and defendant appeals. Reversed.

This was an action commenced before a justice of the peace, the plaintiff suing out an attachment as landlord for the collection of rent alleged to be due. After judgment rendered in favor of the plaintiff by the justice of the peace, the defendant appealed to the circuit court.

The complaint was in words and figures as follows: "The plaintiff claims of the defendant twelve hundred pounds of lint cotton, or its alternate value, one hundred and eight dollars, the rent of a tract of land, viz., one hundred and twenty acres of land, more or less, known as the 'J. B Jones Place,' in Monroe county, Alabama, which was demised by the plaintiff to the defendant in the year 1900 and for the year 1900."

To this complaint the defendant filed the following pleas: "(1) General issue, with leave to introduce in evidence any matter that could be specially pleaded. (2) that the contract which is the foundation of this suit was a special promise to answer for the debt, default, or miscarriage of another, and that such special promise was not in writing expressing the consideration for such promise. Therefore this defendant is not liable in this action. (3) That the contract which is the foundation of this suit was without consideration, in this That Henry L. Linam, who was the husband of this defendant rented from the plaintiff, as agent of M. A. Jones, certain lands in Monroe county, Alabama, for the year 1900. That during the month of April, 1900, said Henry L. Linam became dead; that the rent was for two bales of lint cotton weighing six hundred (600) pounds, which was due on the 1st day of November, 1900; that subsequent to the death of the said Henry L. Linam on, to wit, the 22d day of October, 1900, this defendant agreed with the said J. B. Jones, as agent of M. A. Jones, to pay the amount of rent due by said H. L. Linam to the said J. B. Jones, as agent of M. A. Jones; that at the time this defendant agreed to pay said rent she was in possession of and residing upon the lands rented by her husband, H. L. Linam, and was so residing at the time of the death of the said H. L. Linam. Wherefore this defendant is not liable to the plaintiff in this cause. (4) That the contract which is the foundation of this suit was without consideration, in this: That Henry L. Linam, who was the husband of this defendant, rented from the plaintiff certain lands in Monroe county, Alabama, for the year 1900; that during the month of April, 1900, said Henry L. Linam became dead; that the rent was for two bales of lint cotton, weighing six hundred (600) pounds, which was due on the 1st day of November, 1900; that subsequent to the death of said Henry L. Linam on, to wit, the 22d day of October, 1900, this defendant agreed with the said J. B. Jones to pay the amount of the rent due by said Henry L. Linam to the said J. B. Jones; that at the time this defendant agreed to pay said rent she was in possession of and residing upon the lands rented by her husband, H. L. Linam, and was so residing at the time of the death of the said H. L. Linam. Wherefore this defendant is not liable to the plaintiff in this case. (5) For answer to the complaint this defendant says that in the early part of the year 1900 her husband, H. L. Linam, rented of J. B. Jones, agent of M. A. Jones, certain lands in Monroe county, Alabama, for the year 1900, agreeing to pay two bales of lint cotton, weighing six hundred (600) pounds, due the 1st day of November, 1900; that under said agreement of rent said H. L. Linam, who was the husband of this defendant, went into possession of said lands, and that this defendant was in possession of said lands as wife of said H. L. Linam; that during the month of April, 1900, said H. L. Linam became dead; that during the month of May, 1900, said M. A. Jones became dead; that said M. A. Jones had only a life interest in the property rented to said H. L. Linam, and at her death the property became vested in Minnie and Lucy Jones, minors; and that on the 26th day of October, 1900, before said rent became due, and after the death of said H. L. Linam and M. A. Jones, a notice was served on this defendant by F. J. Dean, as next friend of Minnie and Lucy Jones, demanding that this defendant attorn to him, as next friend of Minnie and Lucy Jones, as tenant for such lands, and that, after receiving such notice this defendant did pay to said Minnie and Lucy Jones the rent due on said lands. Wherefore this defendant is not liable in this action. (6) Answering to the complaint of this cause, this defendant pleads and says that during the early part of the year 1900 H. L. Linam, who was the husband of this defendant, who became dead in the month of April, 1900, rented of J. B. Jones certain described lands in Monroe county, Alabama, for the year 1900, and agreed to pay as rent thereof two bales of lint cotton, weighing six hundred (600) pounds each, and that on the 22d day of October, 1900, this defendant agreed with said J. B. Jones that she would pay the rent which the said H. L. Linam had contracted with said J. B. Jones to pay; that at the time that this defendant agreed to pay said rent she was under the impression, and was so informed by J. B. Jones, that he owned and had legal title to said lands, and that it was with this understanding and this agreement that she agreed to answer for the debt of her husband, H. L. Linam; that subsequent to such an agreement, to wit, the 26th day of October, 1900, she was informed and ascertained that J. B. Jones was not the owner, and did not have legal title to the lands rented by her husband from J. B. Jones, but that Minnie and Lucy Jones were the owners, and had the legal title to said lands, under and by virtue of a deed executed by said J. B. Jones." The defendant filed in the circuit court a plea in abatement seeking to have a writ of attachment quashed, on the ground of defects existing therein as averred in said plea.

The plaintiff filed the following replication: "Comes plaintiff, and for replication to pleas Nos. 3, 4, 5, and 6 of defendant, says and avers that he, as individual, and not as agent of any one, rented said land to H. L. Linam for the year 1900; that when said H. L. Linam died plaintiff went to see defendant, and defendant was allowed by plaintiff to remain upon the land upon her agreeing to pay said rent of twelve hundred pounds of lint cotton for rent of said land for 1900, and defendant agreed to pay said rent for said land, and plaintiff thereupon agreed for her to remain in possession of the land, to cultivate the crop; and that said land belongs to plaintiff, and she remained under her contract with plaintiff."

Issue was joined on the first and second pleas of the defendant, and on the plaintiff's replication to the third, fourth, fifth, and sixth pleas of the defendant, and upon this issue the cause was tried. On the trial of the cause the defendant moved the court to quash the writ of attachment, assigning as grounds thereof several alleged defects in said writ. The defendant moved the court to strike this motion to quash the writ of attachment as filed. The court sustained the plaintiff's motion to strike. To this ruling the plaintiff duly excepted. Plaintiff also moved the court to strike the plea in abatement. The court sustained this motion, and struck said plea, and to this ruling the defendant duly excepted.

On the trial of the cause, the plaintiff, as a witness in his own behalf, testified that he owned about 120 acres of land in Monroe county, and had been in possession of said lands since 1885; that he rented this land to H. L. Linam, the husband of the defendant, for the year 1900; that during the month of April, 1900, H. L. Linam died, and shortly after his death ...