Littleton v. Clayton

CLOPTON, J. — The notice issued by the justice of the peace, the petition for a certiorari, the bonds made by the defendant on the writ being issued, a2id the statement of the cause returned by the justice to the Circuit Court, designate the action as for unlawful detainer. On appeal, the case is t2-ied de novo, without regard to any defect in the p2’oceedings. A trial 2nay be had in the Ch’cuit Court, on the complaint before the justice, or a new complaint 2nay be filed; and the complaint before the justice is subject to amendment. Different counts, for fo2’cible entry and detainer, and unlawful detaine2-, may be united in the same complaint. Conceding that the complaint before the justice is for forcible entry and detainer, a new complaint for unlawful detaine2-, filed in the Circuit Court, is not a change of the form of action, or the substitution or introduction of an entirely new cause of action. A de2nand in writing to deliver the possession of the pi'emises is indispensable to maintain an action of unlawful detainer ; and before seconda2’y evidence of its contents is admissible, the same predicate 2iiust be laid as in case of other written instruments in the possession of the opposite party. — Dumas v. Hunter, 30 Ala. 75 ; King v. Bolling, at present teiun. The specified ground of objection to the secondary evidence of the contents of the wi’itten demand is, that notice to produce it had not been given to defendant prior to the trial. A particular ground of objection having been specified, all other grounds are treated and considered as waived. — Jaques v. Horton, 76 Ala. 438. It is unnecessary, therefore, to consider whether sufficient prelimina2’y proof of the loss of the copy was made, to let in parol evidence of its contents. The purpose of notice to a party to produce a paper in his possession is, to afford him an opportunity to produce it, if he desires, find, if he fails or refuses, to let in secondary evidence of its contents. The length of time for which the notice should be given depends on the attendant circumstances, and the time required to obtain the paper. The notice should be [575] for a reasonable time — sufficiently long to enable the party to procure and produce it without undue inconvenience. If the paper is not in court, and can not be produced without delaying the trial, notice should be given prior to the trial; but, when the paper is in court, and in the power of the party to produce immediately, notice at the trial is sufficient. — Brown v. Isbell, 11 Ala. 1009 ; Dwyer v. Collins, 7 Ex. 639; 1 Whart. ou Ev. § 155. Baron Parke said, to allow such an objection to prevail, when the paper is admitted to be in court, “ would be some scandal to the administration of the law.” The written demand, however, was neither admitted, nor shown to be in court. The witness testified, that it was delivered to the defendant; and the defendant testified, that no written demand had ever been made, and that he had no such paper in his possession, in court or elsewhere. When a party denies having possession of the paper called for, the reason for giving notice to produce it ceases. •' It would be useless to give a party notice to produce a paper, which he asserts in open court he never received, andAiad not in his possession. — Roberts v. Spencer, 123 Mass. 397. Underthe circumstances that occurred at the trial, the objection that notice to produce the paper had not been previously given, can not prevail. / It was the prerogative, and within the power of the court, .'on the refusal of the defendant to reply to the notice, or to produce the demand, to examine him as to its possession, in order to be informed as to the sufficiency of the notice. Such examination could not have operated injury to the defendant, and enabled the court to decide the preliminary fact, on which the admissibility of the secondary evidence depended. Whether a written demand had been given, was an inquiry for the jury. The court, in the general charge, observed : “ The law abhors subterfuge; it despises mean dodges and evasions.” Exception was taken to this part of the charge, on the ground that it was -abstract. If it be conceded that the charge is abstract, it will not be controverted that it asserts a correct proposition of law; and an abstract charge, which asserts a correct legal proposition, will not work a reversal. The bill of exceptions does not profess to set out all the evidence; and if necessary to support the charge, we would presume there was evidence on which to found it. There is evidence in the record that the defendant moved off the premises, at the expiration of his rental term, and soon thereafter returned thereon at the request of his father, who asserted a claim to the land. This evidence tended to show that the defendant moved off and returned by collusion with his father, to put his landlord at a disadvantage, and under the supposition that he would [576] thereby evade an estoppel. The jury found this to be true, and, if true, it was a subterfuge and an evasion. No rule of law is more generally settled, than that a tenant, while he is in possession, can not dispute the title of his landlord, nor set up a superior title in himself or a stranger, to defeat an action by the landlord to regain possession. The tenant, by renting and receiving possession from the landlord, recognizes his title, and is precluded from showing that he had no title at the time of the renting. If the tenant desires to assert title in himself or another, he must surrender possession of the premises, and give his landlord the advantage of possession in any litigation as to the title. Mere leaving possession and resuming it a short time afterwards, without notice to the landlord, or giving him an opportunity to take possession, is not sufficient. The tenant must -act in good faith, and restore the landlord to the same condition which he was when he accepted possession from him. — Houston v. Farrriss, 71 Ala. 570; Norwood v. Kirby, 70 Ala. 397; Russell v. Erwin, 38 Ala. 44; Tay. on Land. & Ten. § 705. There--are exceptions to the general rule, but this case does not fall within any of them. The judgment, though somewhat irregular in form,'i(3 substantially such as the statute authorizes. — Beck v. Glenn, 69 Ala. 121. \ Affirmed. ^