Martin v. Martin

• Decision Date: 30 March 1939
• Docket Number: 4 Div. 78.
• Citation: 187 So. 732,237 Ala. 512
• Parties: MARTIN v. MARTIN.
• Court: Alabama Supreme Court

187 So. 732

237 Ala. 512

MARTIN v. MARTIN.

4 Div. 78.

Supreme Court of Alabama

March 30, 1939

Appeal from Circuit Court, Geneva County; Robt. S. Reid, Judge.

Action for rent or use and occupation by H. M. Martin against J. E Martin. Judgment for defendant, and plaintiff appeals.

Transferred from Court of Appeals under Code 1923, § 7326.

Affirmed.

E. C Boswell, of Geneva, for appellant.

Carmichael & Tiller, of Geneva, for appellee.

KNIGHT Justice.

The plaintiff, appellant here, stated his cause of action against the defendant in two counts. In count 1, he claimed $300 for rent of a certain tract of land in Geneva County for the year 1934, while in count 2 he claimed the same amount for use and occupation of said lands for the year 1934.

At the conclusion of the evidence, the court gave the general affirmative charge for the defendant. There was verdict accordingly. From the judgment for defendant, entered upon this verdict, the appellant has prosecuted the present appeal.

But two errors are assigned upon the record. The first presents for review here the action of the court in giving, at the request of the defendant, the general affirmative charge in his behalf; and the second undertakes to challenge the propriety of the court's action in overruling plaintiff's motion for a new trial. We may dismiss this last contention with the observation that the bill of exceptions fails to show that any exception was reserved to the action of the court in overruling plaintiff's said motion. This, then reduces the issue here to one single question. Did the court commit reversible error in giving the general charge, with hypothesis, for the defendant?

Upon the trial of the cause, it would appear that the defendant withdrew his third plea, which was a plea of set-off. There then remained in the case two other pleas, each, in legal effect, a plea of the general issue.

Whether the defendant's real defense to the action was available to him under the plea of the general issue we are not required to determine. The record discloses that the case was tried by the parties throughout upon the theory that whatever defendant owed for rent, or for use and occupation, was either owed to the plaintiff, or to the Federal Land Bank of New Orleans. It was the plaintiff's contention that the defendant was indebted to him for the rent, or for the use and occupation of the premises for the year 1934, under defendant's contract with plaintiff, while the defendant contended that the amount owed by him for said rent, or for use and occupation must be paid by him to the Federal Land Bank of New Orleans, the owner of the reversion at the time the rent, or the amount owing for use and occupation fell due. We will, therefore, review the ruling of the trial court as if this issue had been specially pleaded. Richmond & Danville R. Co. v. Farmer, 97 Ala. 141, 12 So. 86; Gainer v. Southern R. Co., 152 Ala. 186, 44 So. 652; Snellgrove v. Evans, 145 Ala. 600, 40 So. 567; Planters' & Merchants' Independent Packet Co. v. Webb, 156 Ala. 551, 46 So. 977, 16 Ann.Cas. 529.

We assume, from the ruling of the court, that it was of the opinion that defendant's contention was correct, as the defendant did not deny that he was indebted to one or the other of said parties.

In view of the fact that the court gave the general affirmative charge for the defendant, we will state the evidence in its most favorable aspect for the plaintiff:

The plaintiff offered testimony tending to show: that H. M. Martin, the plaintiff, owned a tract of land in Geneva County in 1934, and for some years prior thereto. Sometime prior to said year the said Martin and wife executed a mortgage on said lands to the Federal Land Bank of New Orleans. In the fall or winter of 1933 an installment payment fell due on this mortgage, and the mortgagors were unable to pay the same. The mortgagor was anxious to remain on the place during the year 1934, and his brother, J. E. Martin, desired to aid him in retaining the possession of the property during said year, if possible, and to that end, the said J. E. Martin entered into a contract with his brother for the rental, or for the use and occupation, of said lands for that year.

We will here state the terms of the alleged contract in the language of H. M. Martin, when testifying in his own behalf upon the trial: "J. E. Martin is my brother. In 1934, and prior to that time, I owned what is known as the J. K. P. Martin place in Geneva County. I lived on this farm. I made a trade or contract with my brother, J. E. Martin, in the Spring of 1934 relative to the rent or use of this farm. The Federal Land Bank had a mortgage on the place, I saw where I couldn't pay for the place, and they hadn't sold it or hadn't told me to move or nothing like that, and so my brother came to me and said, 'I will rent the place or I might take it up for you and let you stay on the place also,' and I says, 'Anyway, if I can stay on the place reasonable or right I will do so.' He says 'I'll do one or the other, I will take up the place if there is not too much back dues on it' and so on, and 'if it is, I will just rent the place and if they don't turn you off the first six months, and if they do that I will have to pay them,' and he says, 'That is the law in that way,' and I says 'Well, any way, whichever the rent comes to we will let it go that way,' and he says, 'I will also then if they sell it the latter part of the year see...