Miller v. Faust

• Decision Date: 29 June 1946
• Docket Number: 4 Div. 392.
• Citation: 26 So.2d 908,248 Ala. 268
• Parties: MILLER et al. v. FAUST.
• Court: Alabama Supreme Court

26 So.2d 908

248 Ala. 268

MILLER et al. v. FAUST.

4 Div. 392.

Supreme Court of Alabama

June 29, 1946

Rehearing Denied Aug. 2, 1946.

W R. Martin, of Ozark, for appellants.

Alto V. Lee, III, and Jas. L. Tindell, both of Dothan, for appellee.

LAWSON, Justice.

Appellee R. L. Faust, brought this suit in the Circuit Court of Dale County against the appellants, to recover the sum of $300 which he claims is due him for the use and occupation by appellants of a certain tract of land described in the complaint. The complaint was filed on the 17th day of October, 1943, and appellants were served on the 17th day of November, 1943.

On November 17, 1943, a writ of attachment was issued on affidavit made by plaintiff, Faust. The sheriff of Dale County, in compliance with the attachment writ, levied on about three hundred bushels of peanuts valued at $450. Defendants executed bond and replevied the property levied upon by the sheriff.

On December 17, 1943, defendants filed what is termed an answer to the complaint wherein they say: (1) Not guilty; (2) they each deny the truth of the averments as contained in the bill of complaint, and each says that same are not true; (3) each denies that the lands mentioned in the bill of complaint, and set out in full in said bill of complaint, are the property of the said R. L. Faust, complainant, or that they belong to him, but on the contrary they each say that the lands described and set out are the property of and in possession of the defendants.

The cause came on for trial on February 19, 1945. The trial court at the request of plaintiff gave the affirmative charge with hypothesis in his favor and denied a like charge requested by defendants. There was verdict and judgment for plaintiff in the amount of $200.

The evidence is without dispute as to the use and occupation of the lands by defendants from the first day of October, 1939 to the first day of October, 1943, the period of time involved in this suit. The fair and reasonable rental value of the said lands was conclusively shown to have been from $75 to $100 per year.

The defendants, appellants, contend that the trial court erred in giving the affirmative charge as requested by plaintiff for the reason that plaintiff did not show that the property belonged to him nor that the relationship of landlord and tenant existed between the parties and that therefore the plaintiff could not recover under the provisions of § 46, Title 31, Code of Alabama 1940, which provides that a reasonable satisfaction may be recovered for the use and occupation of land in the instances therein enumerated.

It is plaintiff's contention that he is the owner of the lands by virtue of having purchased them at mortgage foreclosure sale. He testified that shortly after he purchased the property at the foreclosure sale he made written demand upon the defendants for possession but that this demand had been refused and that he had not been in actual possession of the property.

It is now well setled in this jurisdiction that, after foreclosure, if the mortgagor continues in possession of the premises, he is to be treated as a tenant at will, or at sufferance, of the purchaser, depending upon the facts of the particular case, and as such is liable to the purchaser for use and occupation of the premises. Buchmann et al. v. Callahan, 222 Ala. 240, 131 So. 799; Federal Land Bank of New Orleans v. Lloyd et al., 224 Ala. 48, 138 So. 417; Federal Land Bank of New Orleans v. Wilson et al., 224 Ala. 491, 141 So. 539; First Nat. Bank of Dothan v. Federal Land Bank of New Orleans, 225 Ala. 387, 143 So. 567; Bates v. Bank of Moulton, 226 Ala. 679, 148 So. 150.

The only evidence offered by plaintiff which in any way tends to show that he is the owner of the property here involved or that the relationship of landlord and tenant existed between him and defendants, was a mortgage foreclosure deed which was introduced in evidence as plaintiff's Exhibit A.

The said foreclosure deed contains the following recitals of facts which are here material. The defendants on February 6 1931, executed a mortgage on the property involved in this suit to Riley Trade and Finance Company, a corporation. The mortgage and the debt thereby secured was, with all rights and powers of foreclosure therein contained, transferred and assigned by the said mortgagee to plaintiff, in February of 1936. The said mortgage authorized and empowered the mortgagee or its assignee, in case of default, to take possession of said property and to sell it at public outcry, for cash, to the highest bidder, without giving notice of the time, place and terms of sale and...