Randolph v. Carlton

COLLIER, C. J. 1. The eighth section of the act of 1837, [Clay’s Dig. 61, § 24,] authorizes the plaintiffin a suit at law, commenced in the Circuit or County Court, to cause an attachment to be issued against the defendant’s estate, where he absconds or secretes himself, or shall remove, or be about to remove out of this State, or shall be about to remove his property out of this State, or be about to dispose of his property fraudulently, with intent to avoid the payment of the debt sued for. It also provides that the plaintiff shall make oath to the truth of the particularground upon which the attachment issues, and that the same “ shall be issued, executed and returned as near as may be in the same manner as original attachments, and the said affidavit, and bond, and at — 613 — tachment, when returned, shall be filed with the papers in the original suit, and shall constitute a part thereof, and the plaintiff in said suit, may proceed to judgment as in other cases.” By the first section of the same statute it is enacted, “ Whenever an original attachment shall be issued for, or upon any of the causes now provided by law, it shall be lawful to levy the same upon any land belonging to the defendant in súch attachment, by the officer whose duty it maybe to levy or execute the same,in the same manner that attachments are or may by law authorized to be levied on goods, chattels,or effects.” [Clay’s Dig. 60, § 29.] The 9th section provides that any property which may be attached under the provisions of the eighth section, may be replevied, as in other cases of attachment, and after judgment shall be rendered and execution issued against the defendant, if any property replevied shall not be delivered to the sheriff or his deputy, holding such execution, within ten days after the demand thereof, &c., it shall be the duty of the sheriff, &c. to certify the fact to the clerk issuing the same; whereupon the replevin bond shall be deemed forfeited, and it shall be the duty of the clerk forthwith to issue an execution, against the principal and sureties therein, for the amount of the plaintiff’s judgment, with costs: Further, when judgment shall be rendered, execution may issue in the usual way, which shall first be levied on the property attached, if to be had, and then upon any other property of the defendant, until a sufficient amount shall be levied on to satisfy the execution in full. [Ciay’s Dig. 62, § 35.] In McRae v. McLean, 3 Porter’s Rep. 138, it was decided, that an attachment created a lien in favor of an attaching creditor, which cannot be divested by the replevying of the property; and that when attached, it was in the custody of the law, to abide the judgment of the Court. So in Pond v. Griffin, 1 Ala. Rep. 678, N. S., a case which arose subsequent to the passage of the act of 1837, it was held that an attachment levied on slaves created a lien which could not be divested by writs of fiei'i facias, placed in the sheriff’s hands afterwards, but on the same day. [See Dore v. Dawson, 6 Ala. Rep. 712.] It is perfectly clear from the act and the cases cited, that the ancillary attachment which is provided for, by the eighth section, may be levied on land, and that the lien in such case, and in respect to such property, is a necessary consequence of the levy. This — 614 — conclusion is so obvious, from these citations, as to require neither argument or illustration. 2. In Webb v. Bumpass, 9 Porter’s Rep. 201, which was an action by a purchaser at a sheriff's sale, to recover the possession of land, the levy of the fieri facias was indorsed thus :— “Levied on a tract of land, upon which Gabriel Bumpass now lives, in Lauderdale county, adjoining Richard Baugh and-, supposed to contain eighty acres,” &c. We said, “ It was certainly no objection to the execution offered in evidence, that the sheriff’s return does not describe with more particularity, the land levied on. There is no statute imposing upon the sheriff the duty of mating a more particular description.” Benjamin v. Smith, [4 Wend. Rep. 462,] is there cited, in which the Court said it was not necessary in a return to an execution, by virtue of which lands have been sold, to describe the land with particularity, but it was competent to show its identity with that levied on by parol proof. [See also, Boylston v. Carver, 11 Mass. Rep. 515; Hedge v. Drew, 12 Pick. Rep. 141; Hubbert v. McCollum, 6 Ala. Rep. 221.] In the case before us, the attachment was returned levied “on one tract of land adjoining the lands of La Carlton, Mrs. Gray, and others, containing two hundred acres,more orless.” This is sufficiently certain, and the precise location of the land may be shown by extrinsic proof. It is not necessary that the return should have affirmed that the defendant in attachment was the proprietor of the land ; this will be intended even where the regularity of the levy is drawn in question by a direct proceeding. The sheriff, it must be supposed, did his duty, and as he was commanded to attach the defendant’s estate, it will not be presumed that he levied upon the property of another person. [Bickerstaff v. Patterson, 8 Porter’s Rep. 245; Kirksey, et al. v. Bates, 1 Ala. Rep. N. S. 303; Miller, et al. v. McMillan, et al. 4 Ala. Rep. 527.] 3. It is said a tenant cannot deny the title of his landlord, under which he entered *, yet he may show that it has terminated, either by its original limitation, or by conveyance, or by the judgment and operation of law. [Jackson v. Davis, 5 Cow. Rep. 123-134.] In Jackson v. Rowland, 6 Wend. Rep. 666, 671, the defendant, who was the tenant of the lessor of the plaintiff, set up a title acquired by a third person, as a purchaser under execution, issued on judgments against the lessor. In answer to the ar615 gnment that the defendant could not avail himself of the outstanding title, the Court said “ A tenant cannot dispute the title of his landlord, so long as it remains as it was at the time the tenancy commenced; but he may show that the title under which he entered has expired, or has been extinguished.” Further, if the landlord seeks to eject his tenant, surely the latter may set up an outstanding title. “Nowell founded objection is perceived to the defendant’s setting up.a title, acquired under a judgment since he became tenant, overreaching the title of his land-lord.” There, the title set up, was made effective in 1827, but the Court held that it should relate back to, the. time when the judgments became operative, and thus defeat a mortgage executed by the landlord in the interval. So it has been decided by the same Court, that “ so long as a tenant is not expelled, he has in general, no right to question his landlord’s title. He cannot deny that he had a' right to demise at the 'time qf the lease. He cannot defend on the ground that he has acquired an outstanding title adverse to that, of the landlord. But I am not aware that the estoppel goes-farther. If .the landlord part with his title pending the lease, the duty of the tenant, including that of paying rent, is. due to the assignee; and should the tenant buy in the as-signee’s light, the lease would bé extinguished. So, if the landlord sell and release to the lessee. In these cases no action would lie for the rent. Therefore, had there been a shexiff’s sale of the whole reversion of the demised premises, and the defendant had redeemed or purchased under the judgment, no action could have been sustained; for a purchase or acquisition of title under a judgment against the lessor, is the same thing as if he had granted by deed. It is, to be sure, acquiring title indirectly, and by operation of law, from the lessor; but it comes through his act and consent, or his neglect, and is -therefore the same in legal effect as if he had granted or demised the reversion.” [Nellis v. Lathrop, 22 Wend. Rep. 121.] In Swann v. Wilson, [1 A. K. Marsh. Rep. 99,] the general rule, that a tenant cannot controvei't his landlord’s, title, was admitted ; but it was said he may show that the landlord’s title has expired ; or that a title which he himself acquii'ed has been adjudged by the decree of a court ,of equity to be the supei’ior one. And in Gregory’s heirs v. Crab’s'heirs, [2 B. Monr. Rep. 234,] it was held, that the tenant is not estopped to show that the landlord — 616 — conveyed the premises to a third person subsequent to the tenant’s entry, and that allegiance is due to the assignee. Comyn, in his Treatise on the Law of Landlord and Tenant, 520-523, after stating the general rule, that the defendant cannot defend in ejectment against the landlord, or those claiming under him, upon a supposed defect of title, says : “ But though the defendant cannot show that his lessor never had title to the demised premises, he may, on admitting that he once had a title, shew, that his interest has expired. As, if the lessor being tenant per autre vie, bring debt against the lessee for rent, accruing since the death of cestui que vie, the tenant may show, (not that the lessor never had title, but, admitting that he once had title,) that the interest of the .lessor is at an end. Where, therefore, the heir of the lessor brought covenant for want of repairs, and the defendant pleaded that the lessor was only tenant for life, and traversed that the reversion was in him and his heirs, the Court held this to be a good plea.”. Further, the lessee may show that the lessor was only seized in right of his wife for her life, and that she died before the covenant was broken. In Doe ex dem Lowden v. Warson, 2 Starkie’s Rep. 230, Lord Ellenborough held, that the tenant in ejectment might show that his landlord had disposed of his interest during the term. The defence set up in the case before us, when limited to the effect oí the attachment, and proceedings consequent thereon, does not deny that the plaintiff had a good title at the time the defendant became his tenant; but it assumes, that that title, be it what it may, has been extinguished since the tenancy commenced, and that the defendant has become the proprietor of the premises in question. By receiving the possession of land from another, under a lease, the tenant impliedly admits that his lessor has such a title as authorized him thus to dispose of the premises, but he cannot be held to affirm any thing in respect to its continuance ; consequently it is allowable to show that the title has expired, or been extinguished by operation of law. We have seen, that by the levy of the attachment on the land, the plaintiff acquired a lien upon it, which continued in force up to the rendition of the judgment, and the statue saved it, and made it available, although a fieri facias instead of a venditioni expo-nas -was issued upon the judgment. Speaking of the lien which the levy of an attachment operates, the Superior Court of New — 617 — Hampshire said, “ the existence of the lien or security is, in our view, in no way contingent, conditional or inchoate. Its existence does not depend upon the judgment. It exists in its full force, from the moment the attachment is made; as much so as a lien by judgment, upon the rendition of the judgment in the States where that security is recognized. As we have already seen, it fastens itself upon, and binds the property, at once giving priority of right,” &c. [Kittredge v. Warren, January term, 1844; 7 Law Reporter, No. 2.] The plaintiff purchased from Beverly after the levy of Wren’s attachment, and after the latter acquired a right to have the land sold to satisfy such judgment as he might obtain in that proceeding. This lien we have seen, was continuing, and paramount to any conveyance of the property which Beverly could make. If a third person had become the purchaser at the sale under the execution, the cases cited show, that the allegiance of the tenant would be transferred to him, if the tenant continued to occupy with the permission of such a purchaser; and without stopping to particularize, in several of the cases, the tenant was allowed to set up his own title, acquired after the extinction of the landlord’s ; and none of them are opposed to a defence thus sustained. None of the elementary writers or adjudged cases which have fallen under our observation lay down the general rule, as one of unyielding and universal application ; but we have seen that it has many exceptions. Perhaps no case may be found which is in toticlem verbis like the present, but wo think the principle of several of those noticed by us are so strikingly similar, as not to require illustration to make the analogy more manifest. The title of the plaintiff’ does not remain as it did at ■ the time the defendant’s tenancy commenced. Then, he had as it respects Beverly an unquestionable right, and if Wren failed in his suit, or the lien of the attachment was discharged, his title would be disembarrassed, unless it could be overturned, because the purchase was not bona fide. But the suit was prosecuted to judgment, and execution, the lien of the attachment made available, and all semblance of title divested from the plaintiff. Under such circumstances, the defendant might have resisted a recovery, (as we have seen,) if a third person had purchased, by becoming his - tenant; and there being no rule of law which forbids one situated — 618 — as the defendant, to purchase, we think he may resist a recovery by setting up the title he has acquired. 4. The payment by the defendant, in April, 1842, of the rent which he had agreed to pay the plaintiff* for the enjoyment of the premises during the year 1841, was not an admission of a continuing tenancy, and consequently does not estop him from showing that the plaintiff’s title had been extinguished, subsequent to the commencement of the lease. 5. In the sixth instruction to the jury, the Circuit Judge misapprehended the law. He said, if the proof did not show the identity of the lands in question with those levied on, then it was competent for them to inquire into the bona fides of the transaction between Beverly and Randolph; and if the conveyance was made, with the intention to defraud Wren of his demand, and so known to the plaintiff, then the plaintiff acquired no title that could prevail against the defendant’s purchase. This charge tolerates the right of the tenant to dispute the title of his landlord. It does not refer to any change in the title after the tenancy commenced, but it assumes, that if it was then invalid, the tenant might defend an action for his ouster, by showing its invalidity; and this without reference to any post factum right acquired by the tenant. As to defendant’s purchase of lands under execution, it did not authorize him to hold them against his landlord, if he could not make it appear that those levied on by the attachment and sold under the execution, were the same which the plaintiff was seeking to recover. Such sale and purchase would avail nothing, and should be thrown entirely out of view in considering the legal question raised upon the charge. When stripped of every thing extraneous, the instruction amounts to this, viz: If the transaction between Beverly and the plaintiff was influenced by the intention to defraud Wren, and the plaintiff was cognizant of the quo animo of Beverly, then he could not oust his tenant, though the latter showed no title. It is sufficiently manifest from what has been said, that this charge is not in harmony with the law. If the question whether the lands which have been attached and sold under the execution were identical with those now in controversy, was one of a legal character, and the record showed their identity, we might perhaps be inclined to hold that the error noticed did not prejudice the plaintiff; and conseqnently furnished no cause for the reversal of the judgment. But there — 619 — is no such proof recited in the record. The declaration describes the land by its numbers, according to the official survey, while (as we have seen,) in the levy of the attachment, it is described by its locality in reference to other proprietors of adjoining lands. Thus it is obvious that parol proof was necessary to settle the question ofidentity. 6.' In respect to the discrepancy between the writ, declaration and judgment, it certainly was not such as should have induced the exclusion of the judgment as evidence. The writ and declaration describe Wren as administrator, suing for the use of another, and his name is merely stated upon the margin of the judgment, without showing in what character he recovered. We should be disposed to treat this objection as untenable, even in a direct proceeding at the suit of Beverly, to reverse Wren’s judgment, but coming up collaterally, we have no hesitation in saying it cannot be supported. The judgment furnished a warrant for the execution, and we will not go further back to scan the regularity of the proceedings. The other points raised in the cause, are either embraced by those considered, or cannot arise upon q future trial. Without extending this opinion to greater length, we have only to add, that the judgment of the Circuit Court is reversed, and the cause remanded.