Fleming v. Moore , 122 Ala. 399 ( 1898 )

DOWDELL, J.

— We think the weight of the testimony in this case shows the following state of facts: One R. IT. Moore went into possession of the land in controversy under a tax sale some time in 1888, and subsequent thereto permitted one Louis Reese to move into and occupy a house on said land. Some time thereafter, said Reese, hearing that Paris Benjamin and Alfred Fleming owned or claimed the land, sought those parties for the purpose, as he states, of buying the land from them. However, not purchasing the land, he made a rental contract with Paris Benjamin in regard to the land. This attornment by Reese to Benjamin was never brought to the knowledge of Moore or the respondent in this case, and all during this time, that is, from the time that Reese was permitted to go upon said land, down to the filing of this bill, this respondent and the said R. II. Moore, under whom she claimed title, in ignorance of the transaction between Reese and Benjamin, permitted said Reese to continue on said land, considering and treating them as their tenant. •

The vital question in this case then seems to be, whether under these facts the complainant has acquired such a possession of the land that he can now come into a court of equity and maintain his bill under the statute. In construing a similar statute to ours, the Supreme Court of New Jersey, in the case of Jersey City v. Lembeck, 4 Stewart (31 N. J. Eq.) 272, uses the following language: “The purpose of the act was to relieve, not persons who had the power to test the hostile claim by a direct proceeding in the usual mode, but to aid those persons whose situation afforded them no such opportunity. The inequity that was designed to be remedied grew out of the situation of a person in the possession of the laiid as owner, in which land another person claimed an interest which he would not enforce; and the hardship was that the person so in possession could not force his adversary to sue, and thus put the claim to the test. The title of the act indicates that this is its purpose, for it is an act To compel the determination of claims to real estate.’ In the present instance, the complainant had it in his power, by one of the customary processes of the law, to bring to judgment the claim he wished to control, and it would, therefore, seem to be going out of the Avay to maintain that this statute is applicable in aid of his inaction. If a party'in possession of land can throw the hostile claim into a course of law, and thus get rid of the cloud overhanging his estate, Avhy should he not do it? and what reason is there to say that this act Avas designed to help a party who was in no strait, but of his oayia choosing?”

In the case of Campbell v. Davis, 85. Ala. 56, which Avas a bill to remove a cloud from the title to land, this court said: “As a general rule a tenant is estopped to deny the title of his landlord, either during the continuance or after the expiration of the term. Before the tenant will be heard to assert an outstanding title in himself or in a stranger, he must surrender the possession to his landlord, unless his title has expired or been extinguished, or the reversion has passed by a valid alienation to the tenant or a third person since the commencement of- the tenancy. The attornment of the tenant to a stranger does not of itself destroy the possession of the landlord;” citing Rogers v. Boynton, 57 Ala. 501. “Also when possession of the rented land is tortiously gained from the tenant or otherwise so as to entitle the landlord to maintain an action of forcible entry and detainer, a court of equity will not, on such possession entertain a bill at the instance of the tortfeasor to remove a cloud from his title to the land. Equity will not extend aid to protect a possession acquired by unfair or unlawful means. The possession which gives jurisdiction in such cases ■ must be rightful.” See also Turnley et al v. Hanna, 67 Ala. 101; Dedman v. Smith, 2 A. K. Marsh, 266; Comstock v. Henbury, 66 Ill. 212; Hardin v. Jones, 86 Ill. 313; Hamilton v. Adams, 15 Ala. 596.

It is true that the bill in the case of Campbell v. Davis, suprcc, was prior to the enactment of the present statute under which the present bill is filed, but the principle underlying both cases is the same. Reese having gone into the possession of the land under Moore, became the tenant of Moore, and his, Reese’s possession was the possession of his landlord, Moore. The subsequent attornment of Reese to a stranger without notice to the landlord, did not destroy the landlord’s possession. — DeJarnette v. McDaniel, 93 Ala. 215; 3 Brick. Dig. 17, § 20. The nature and character of the claim and title to said land by respondent and R. H. Moore, under whom she derived her title, had undergone no change, but remained and continued the same after Reese went upon the land by Moore’s permission and became the tenant of Moore. Reese as tenant could not deny the possession of his landlord, and his attornment to a stranger was a wrong to his landlord. We think it clear that whatever of possession the complainant in this case acquired by the attornment of Reese, was tortious as to Reese’s landlord. The complainant gained an unfair advantage by the wrongful conduct of respondent’s tenant which cannot be upheld in a court of equity.

At the time the complainant accepted the attornment of the tenant, Reese, the complainant had his remedy against this respondent in a court of law, and in such court could have tried his title to the lands in question in an action of ejectment, or in the possessory action given by the statute. He had no cause or ground at that time for calling upon a court of equity to interfere in his behalf. It would hardly be fair and just, or in consonance with the plainest principles of equity, to permit the complainant to obtain the aid of that court in relieving him from a situation in which he has voluntarily placed himself, and that too by participating in the Avrongful act done by the tenant, Reese, to his landlord.

The respondent being in possession under claim of ownership, the tax deed and other conveyances offered in evidence by respondent, and which were objected to by complainant, were admissible as color of title and as defining the boundaries of the actual possession.-— Hughes v. Anderson, 79 Ala. 209; Doe v. Clayton, 81 Ala. 391; Dillingham v. Brown, 38 Ala. 311; Barron v. Barron, ante, p. 194; 24 So. Rep. 55; 3 Brick. Dig. 17, § § 33, 34.

We find no error in the record, and the decree of the chancellor is affirmed.