Wise v. Falkner

BRICKELL, J. The several'counts of the complaint are framed to recover rent for the use and occupation of lands demised by the plaintiff to the defendant. On the trial, there was evidence tending to show that the defendant entered into the occupancy of the lands, under a contract of renting for a year, made with one Curry. During the term, Curry sold and conveyed the premises to the plaintiff, the rent not being due and payable until the expiration of the term; There was also evidence tending to show that, after the sale and conveyance to the plaintiff, the defendant, having notice thereof, attorned to the plaintiff, and expressly promised to pay him the rent. In either aspect of the case, the plaintiff was entitled to the rent falling due after the conveyance to him by Curry. Under the statute (R. C. § 1568), rent is an incident' to the reversion, and the lessor’s grant of the reversion carries with it the rent falling due thereafter, without the attornment of the tenant to the grantee. English v. Key, 39 Ala. 113. 2. After an attornment, and an express promise to pay the rent to become due, the relation of landlord and tenant would be created by contract, and not by operation of law. Taylor’s Land. & Ten. § 14. On this contract, the plaintiff would be entitled to recover the rent, and may declare thereon, as if he had been [the original lessor. When the plaintiff’s right of recovery rests on the transfer of the reversion to him, he must, in declaring against the lessee for rent, aver that he is the assignee of the reversion, showing how he became such. 1 Chitty’s Pl. 367. The rule prevails, which applies whenever the plaintiff claims as assignee, and not by virtue of a contract made with him, that the assignment, which lies at the foundation of his right of action, must be averred. If he declares generally, as upon a contract made with himself, and the evidence offered is of a contract made with another, to which he derives a right by assignment, there woiild be a fatal variance between the pleading and proof. The complaint being general, adapted only to a recovery of rent on a demise made by the plaintiff, the court did not err, in charging the jury that the plaintiff could not recover the rent reserved on the demise of the lands made by Curry; and this we understand to be the [363] meaning of the first and second charges, to which exceptions were taken. The plaintiff had a clear right to recover this rent; but his right accrued by assignment, and by proper averments he should have shown how it was derived. 3. When this case was before this court at the January term, 1871 (Wise v. Falkner, 45 Ala. 471), one of the errors assigned was a charge given by the circuit court, that if the defendant, in the presence of the plaintiff, and without objection from him, hadfpaid the rent now claimed, in Confederate treasury-notes, to the clerk of the circuit court, in answer to process of garnishment against him as the debtor of Curry, his original landlord, and the vendor of the plaintiff, the plaintiff could not recover. This charge was declared erroneous. The charges which are now assailed as erroneous, on the authority of that decision, present a different state of facts. The payment of Confederate treasury-notes, to the clerk of the circuit court, is now claimed to be valid, because induced by the plaintiff’s express consent to such payment, and on his agreement to contest with the attaching creditor the right to the notes so paid to the clerk of the court. A debt may be extinguished by the creditor’s voluntary acceptance of Confederate treasury-notes in payment. Ponder v. Scott, 44 Ala. 241. If the plaintiff had directly accepted such notes, in satisfaction of the debt now claimed from the defendant, the debt would have been extinguished, and no right of action would have remained in the plaintiff. The payment to another, with the consent of the plaintiff, and on his promise to look to the funds so paid for the satisfaction of his debt, has the same effect. Such consent and agreement estop the plaintiff from subsequently claiming the debt of the defendant. The court did not, therefore, err in giving the third, fourth, and fifth charges, in effect asserting the law as we have declared it. 4. In giving the sixth charge, the court erred. It assumed as a fact proved in the cause, that plaintiff said “ he could burst up the garnishment suits.” We do not find in the record any evidence that plaintiff had made any such declaration. A charge must be confined to the testimony. In it no fact must be assumed or asserted as proved of which there is not evidence. Hollingsworth v. Martin, 23 Ala. 591. 5. The seventh charge is also erroneous. The plaintiff and defendant were both competent witnesses. Each, in legal contemplation, is equally credible. When two witnesses, of equal credibility, directly contradict each other, it is the province of the jury to weigh the evidence, and determine for themselves which they will believe. The law attaches no more weight to the evidence of the defendant, than to that of the plaintiff. The testimony of the one is not set off against the testimony [364] of tbe other. The jury must, from the manner in which they testify, and from the tests to which they would subject the tesimony of witnesses not parties or interested, determine to whom they will give credit. For the errors we have noticed, the judgment is reversed, and tbe cause remanded.