Doe ex dem. Kennedy's Heirs v. Reynolds

G-OLDTHWAITE, J. We regard the admission of Mrs. Horton as a witness for the defendant on the trial below 'as ■ erroneous, for the reason, that by her own statement she was his tenant, (Ames v. Schuesler, 14 Ala. 600 ; S. C., 16 Ala. 73), and a tenant cannot be a competent witness for his landlord ; for if the verdict is against him, he would be liable for the mesne profits, and might also be turned out of possession, (Doe v. Forster, Cowp. 621; Bourne v. Turner, Strange, 632; Jackson v. Hill, 8 Cowen, 290) ; and his interest is not balanced, for the mesne profits may be more than the rent of the land. — Adams on Ejectment, (1 Amer. ed.) 337, 338. It is urged, however, that no injury resulted from admitting the evidence of this witness, for the reason, that the facts which her testimony conduced to prove were established by the plaintiff’s witness. It is true that the testimony of the [375] witness last referred to tended to prove that Mrs. Horton was the tenant of Reynolds at the time she accepted the lease from Hallett; but this was not the only fact proved by her when introduced by the defendant. She then testified that she had been his tenant for eight or nine years before her examination ; and there was no testimony which conduced to prove this fact on the other side. The defendant relied on twenty years’ possession; and the length of time he was proved to be in, by this witness, as his tenant, may have entered into the inquiry. The rule is, that injury must always be presumed from error, unless the contrary, clearly appears. Frierson v. Frierson, 21 Ala. 549. As to the right given by section 2211 of the Oode¡ to the defendants in real actions, to demand an abstract of the plaintiff’s title, we concede that it is nothing more than a rule of practice or evidence, and that it would apply to all su,eh actions as were pending at the time the Code took effect, were it not for section 12, which provides that its provisions shall not affect any action commenced before its adoption. The words of the section referred to exclude the idea that the new rules of practice or evidence furnished by the Code are to be made an-exception. It applies to all of its provisions; and the object undoubtedly was, to lay down a certain and definite rule for the direction of suitors and judges, in relation to the conduct of causes which had been commenced at the time the new law took effect, and to which for that reason some of its provisions might not be applicable. It was impossible to foresee what would be the result of commingling the two laws in the same case; and to avoid difficulties and embarrassments, which might arise from that cause, it was deemed better that all cases commenced under the old law should be governed by it from the time of their commencement to the final action of the court. Upon this class of cases the provisions of the Code have no more effect, than if it had never been adopted. As to them, the old law is, by the operation of the 12th section, kept alive. From what we have said, it follows, that the court should not have required the abstract of title; but as the case must bo reversed on other grounds, it is needless to inquire whether its action in this respect was, under the circumstances shown by the record, a reversible error, [376] The court erred, also, in allowing the witness Stickney to testify to the foreclosure and sale of the mortgaged premises. The records of the suit were the proper evidence. In relation to the legal questions presented upon the charges given and refused, it is to be observed, than an attornment by a tenant does mot, of itself, operate to destroy the possession of the landlord. — 2 Thomas’ Coke, 466; Porter v. Hammond, 3 Greenl. 188 ; Wilson v. Watkins, 3 Pet. 48; Jackson v. Harsen, 7 Cowen, 323; Jackson v. Harper, 5 Wend. 246. It would follow, therefore, necessarily, that if Mrs. Horton, at the time she accepted the lease of Hallett, was the tenant of Reynolds, the latter could not be affected by that, unless there were other circumstances which made the attornment effectual. We agree, that as the effect of a recovery in ejectment is to give the right to the plaintiff to obtain possession for the remainder of the term which he has obtained judgment,, the tenant may in such ’ case protect himself against being-turned out, by attorning to the party whom the law, as against his landlord, has declared entitled to the possession. But this depends.upon the right which the plaintiff has to obtain possession by his judgment; and when that right ceases to exist, that which is dependent upon it also ceases. — Mason v. Bascom, 3 B. Mon. 269, 273. We will not discuss the question whether the judgment upon which the writ of possession issued was void. Concede that it had been rendered in the lifetime of Kennedy, and in his favor, and that the attornment had been made to him at the same time, and under the same circumstances it was made to Hallett; it could not, in our opinion, have had any effect upon the landlord, Reynolds, for the reason, that the term of the demise, as declared upon in that action, had expired, and after that Kennedy would have had no right to issue execution ; and if he had entered, either with or without one, ho would have been a trespasser. — Jackson v. Haviland, 13 John. 229; Smith v. Hornback, 4 Litt. 232 ; Aslin y. Parkin, 2 Burr. 665. The recovery was simply, for the unexpired term; and a plaintiff in detinue might just as well claim the right to have, other property than that which he recovered delivered to him. This is, in effect, the reasoning of Lord Mansfield, in Aslin v. Parkin, supra; where, speaking of ejectment, [377] be says — “This judgment, like all others, only concludes the parties as to the subject-matter of it. Therefore, beyond the term laid in the demise, it proves nothing at all, because beyond that term, the plaintiff has alleged no title, nor could he be put to prove any.” Perhaps, if application had been made in time, the term might have been extended. We say nothing as to this, for it was not done ; but we are clear that the judgment, as it stood, could have conferred no authority upon Kennedy, had he been living, or upon his heirs, or devisees, he being dead, to enter with or without execution; and that the acceptance of the lease by the tenant of Reynolds could'not, under the circumstances, affect him, or make her the tenant to the party in whose favor it was. The fact of a recovery in ejectment, without an entry under it, did not stop the statute of limitations. — Smith v. Hornback, supra; Jackson v. Haviland, supra. The views we have expressed upon the points presented by the record, will be sufficient for a correct determination of the case- upon another trial. Judgment reversed, and cause remanded.