Whaley v. Wynn

• Decision Date: 26 October 1922
• Docket Number: 6 Div. 507.
• Citation: 95 So. 16,208 Ala. 342
• Parties: WHALEY v. WYNN.
• Court: Alabama Supreme Court

95 So. 16

208 Ala. 342

WHALEY v. WYNN.

6 Div. 507.

Supreme Court of Alabama

October 26, 1922

Appeal from Circuit Court, Jefferson County; J. B. Aird, Judge.

Action of unlawful detainer by Maude Wynn, for the use of Mary Lowe against R. E. Whaley. Judgment for plaintiff, and defendant appeals. Affirmed.

Metz &amp Griffith and Erle Pettus, all of Birmingham, for appellant.

Wood &amp Pritchard, of Birmingham, for appellee.

SOMERVILLE J.

In this action-unlawful detainer-the question is merely as to the right of possession between the parties to the record, regardless of whether the plaintiff, or the defendant, or a third person, has the superior claim to the ownership of the property. Nicrosi v. Phillipi, 91 Ala. 299, 8 So. 561.

The general rule is that the plaintiff must show prior possession in himself, but this means only a possession prior to the inception of the wrongful possession of the defendant-i. e., prior to the beginning of the unlawful detainer. And, "so long as the tenant holds under his lease, his actual possession is the actual possession of the landlord; and proof of this actual possession, through and by his tenant, prior to and continuing to the time of the beginning of the unlawful detainer, fully meets the requirements of the doctrine under consideration." Nicrosi v. Phillipi, supra; Beck v. Glenn, 69 Ala. 121.

In this case the lease was made in the name of the owner's agent, Mrs. Wynn. By his acceptance of such a lease and occupation of the premises thereunder, the tenant is effectually estopped to deny the right of Mrs. Wynn to recover the premises upon the expiration of his term, and Mrs. Wynn may properly maintain the action in her own name. Hinckley v. Guyon, 172 Mass. 412, 52 N.E. 523; 34 Cyc. 1413, c. The action is brought by Mrs. Wynn, for the use of Mrs. Mary C. Lowe, but Mrs. Wynn is the real party plaintiff, and the phrase "for the use of Mrs. Mary C. Lowe" may be treated as surplusage, and is without significance so far as the defendant is concerned. Gambill v. Cooper, 159 Ala. 637, 48 So. 691. But there is no impropriety in such a use of the phrase, and it does not render the complaint demurrable. Cooper v. Gambill, 146 Ala. 184, 40 So. 827.

Mrs. Wynn being the actual plaintiff, it was necessary that the statutory demand for possession should be given by her, or in her name by some one duly authorized thereto. Kennedy v. Hitchcock, 4 Port. 230. The bill of exceptions shows that this demand was made in the name of Mrs. Wynn, by Sterling A. Wood, as agent and attorney; and it shows also that Wood was employed by Mrs. Lowe to do all things necessary to recover the possession of the property, and that he was authorized by Mrs. Wynn in writing to take "such action at law or equity as may be necessary to recover said property, and the use of her name in the same."

It was not only proper to show the employment and authority of Wood to do the things he did, but it was necessary to the plaintiff's case, and the trial court properly received the writing offered in evidence thereof. Barnewell v. Stephens, 142 Ala. 609, 38 So. 662.

It is true that the signature of Mrs. Wynn was not proven,...