Howard v. Jones , 123 Ala. 488 ( 1898 )

HARALSON, J.

1. The facts set up in defendant’s second plea created betAveen the plaintiff and the defendant, as to the rented premises, the relation of landlord and tenant. The contract as averred Avas in parol, but it is further averred in the plea that defendant Avent into the .possession of the rented premises under said parol contract of renting promising to-pay $6 per month as rent therefor. Admitting that the contract of renting may have been void' under the statute of frauds as a parol agreenlent of lease for the term of one year to commence in the future, yet such a contract followed by use and occupation created the relation of landlord and tenant. ' The plaintiff under the facts averred might maintain an action against defendant for use and occupation.—Nelson v. Webb, 54 Ala. 436; Crawford v. Jones, 54 Ala. 459; Martin v. Blanchett, 77 Ala. 288.

2. It is so well settled in this State as no longer to be open for discussion, that in an action of unlawful detainer the merits of the title cannot be inquired into, and that the tenant continuing in and withdolding possession from the landlord, cannot dispute Ills possessory title, no matter who has a better one.—Pugh v. Davis, 103 Ala. 316. In the subsequent case between the same parties, where a bill was filed by the defendant to enjoin the writ. Of possessibn, it was said: “The decisions under this Chapter [referring to the chapter of the Code pertaining to unlawful detainer suits] go to the full extent of holding, that when a plaintiff in an unlawful detainer Suit shows prior possession, a letting, and possession of ’the tenant under' the letting, and that the term of the léase haS: ended and' lawful demand and refusal, the case is conclusively made out, and tliere is no defense.” Davis v. Pou, 108 Ala. 443, 445.

'-•The defense set up in this plea, that during the tenancy, the defendant foreclosed a mortgage made by plaintiff on th'e' rented premises to third parties which avus transferred by them to defendant, and became himself the purchaser, and that thereby the. title of the plaintiff to the lands became extinguished, and that he has no right, thereafter, to maintain this action,' coUtravénés the: principles laid doAvn in the foregoifig cases and is of no avail in a suit of this character. As Avas well stated in Houston v. Farris, 71 Ala. 572, “The rule, therefore is,' that before the tenant can be heard 'to set up or assert an outstanding1 title adverse to that'of his landlord, he'must ordinarily-first surrender’the possession' of' the premises and regain it' afterwards, if hé'so d'esiresy by action: ‘ ‘The landlord can' only be required tb litigate'ti'tle with his tenant upon the vafitage'ground Of possession.’ ”—Barlow v. Dahm, 97 Ala. 414. Moreover, the Code provides, that. “The estate or merits of the title cannot be. inquired into on-the trial of- any complaint under this chapter.” — Code, §2135.

The demurrer, to,the plea should have been sustained, and not. overruled.. It. is unnecessary to consider the -re,-, plication to tlie .plea, rendered necessary, as supposed,; in consequence of the ruling of the court sustaining said second plea. • . ■ .

Beversed.and remanded.