Sherrill v. Garth

• Decision Date: 16 May 1935
• Docket Number: 8 Div. 639
• Citation: 161 So. 482,230 Ala. 397
• Parties: SHERRILL v. GARTH et al.
• Court: Alabama Supreme Court

161 So. 482

230 Ala. 397

SHERRILL v. GARTH et al.

8 Div. 639

Supreme Court of Alabama

May 16, 1935

Appeal from Morgan County Court; Seybourn H. Lynne, Judge.

Action of unlawful detainer by Sylvesta Sherrill against Ben Garth and Louis Garth. From a judgment granting defendants' motion for a new trial, plaintiff appeals.

Reversed and rendered.

McAfee & Nix, of Decatur, for appellant.

Wert &amp Hutson and Norman W. Harris, all of Decatur, for appellees.

FOSTER Justice.

The suggestion that the bill of exceptions does not show an exception to the ruling of the court granting the motion for a new trial is not in accordance with what we think is a proper interpretation of it. The judgment of the court on that motion as it appears in extended form is set out in full in the bill of exceptions. Such Judgment states that plaintiff reserved an exception.

It is true that we have often held that when the bill of exceptions contains no recital of an exception, its recital in the judgment, not a part of the bill of exceptions, is not sufficient. Drennen Motor Co. v. Patrick, 225 Ala 35, 141 So. 681; Southern Wood Preserving Co. v McCamey, 218 Ala. 201, 118 So. 393; Thomas v. Carter, 218 Ala. 55, 117 So. 634; King v. Scott, 217 Ala. 511, 116 So. 681; Martin v. State, 216 Ala. 160, 113 So. 602; Ex parte Grace, 213 Ala. 550, 105 So. 707; Akin v. Chancy Bros. Hardware & Furniture Co., 207 Ala. 523, 93 So. 408 (and many others).

It is not necessary that formal judgment shall appear in the bill of exceptions, if it is set out elsewhere in the record, provided the bill of exceptions contains a recital showing the making of the motion, the ruling on it, and the reservation of an exception. Ex parte Grace, supra.

But all of this is shown by a recital in the bill of exceptions of the making of the motion (set out in the record proper), and by setting out in it the formal judgment which shows the ruling and the exception. The judgment also appears in the record proper, as it should. It is therefore proper to give consideration to the only assignment of error here made. It is in respect to granting the motion for a new trial. The judgment of the court on that motion recites that it is sustained on the first and second grounds; that is, the refusal to give an affirmative charge for defendant as requested in writing.

The action is in unlawful detainer. The argument of counsel shows that the court granted the motion upon the idea that the demand for possession (section 8001, Code) was not preceded by a notice to quit.

Plaintiff's contention is that she rented the land to defendants for the year 1933; that they occupied it that year, under that lease, and then in the fall of the year claimed to have bought it from plaintiff in the preceding year, and denied that they had rented it from her for that year, and refused to pay her rent.

Defendants exhibited a deed from plaintiff dated January 1932, but plaintiff's evidence tended to show it was never delivered, but some one had agreed to lend defendants the amount of the purchase price, and the deed was placed in the hands of her lawyer for examination. Her bank failed, and then she died and did not make the loan.

It appears that the deed was carried to the lawyer by one who came with defendant, and after about a year or more it was returned to him who carried it to the lawyer.

It seems to be upon the basis of that deed that defendants claimed the land. By reason of such adverse claim and repudiation of any relation of tenant to plaintiff, she (plaintiff) on November 29, 1933, gave defendants notice in writing to vacate the land. This was equivalent to a demand for possession under section 8001, Code. The suit was filed more than ten days after the notice was served.

Appellees rely upon the authority of Myles v. Strange, 226 Ala. 49, 145 So. 313, to support the ruling of the court.

The jury found for the plaintiff. The effect was to find that defendants did rent the land from plaintiff, as she testified.

Defendants do not insist that the tenants in this form of action can show as a defense that they had the title when they rented the land from plaintiff, or that they have acquired, plaintiff's title since doing so, because in this action the title cannot be inquired into. Jordan v. Sumners, 222 Ala. 314, 132 Ala. 427; Davis v. Pou, 108. Ala. 443, 19 So. 362; Archer v. Sibley, 201 Ala. 495, 78 So. 849.

Two notices or demands are not necessary, except when one is essential to the termination of the right to possession. When the possessory right has terminated for any reason, then only such demand as is required by section 8001, Code, is necessary. That demand was given. A prior notice to quit is not necessary, if the right to hold does not exist without that notice. In the case of Wells v. Sheerer, 78 Ala. 142, 146, it is observed:

"But the tenant may repudiate the relationship, and set up an adverse claim and possession in himself, which, when properly brought home, whether expressly or by implication, to the knowledge of the landlord, will put in operation the statute of limitations in the tenant's favor.

"But the rule of the common law is, that whenever a tenant undertakes to disavow the relationship in this manner, by a hostile claim of ownership in himself--such a claim, at least, as would mature into a good title under the operation of the statute of limitations, if not redressed by action--this repudiation of the loyalty of his obligations will operate as a forfeiture of the lease, at the election of the landlord, who may proceed to consider the tenant as a stranger and a trespasser, and eject him accordingly.--Willison v. Watkins, 3 Pet. 43, 7 L.Ed. 596; Newman v. Rutter, 8 Watts [Pa.] 51; Jackson v. Vincent, 4 Wend. [ N.Y.] 633; Duke v. Harper, 6 Yerg. [ Tenn.] 230, 27 Am.Dec. 462."

And in Dahm v. Barlow, 93 Ala. 120, 125, 9 So. 598, it is said: "But the weight of authority seems to be that a purchase by a tenant of an adverse title, and claiming under it, is regarded as a forfeiture of his term," citing Willison v....