Powell v. New England Mortgage Security Co.

CLOPTON, J. By the statute, an action to recover satisfaction for the use and occupation of land, is authorized only in three classes of cases: first, “when there has been a demise by deed, or by parol, and no specific sum agreed on as rent”; second, “when the tenant has been let into possession upon a supposed sale of the lands, which, from the act of the defendant, has not been consummated”; and, third, “when the tenant remains on the land by the sufferance of the owner.” — Code, § 27.15. The conventional relation of landlord and tenant, or an entry into possession and occupancy by permission of the owner, and in recognition of and in subordination to his title, under circumstances from which a [492] tenancy may be implied, is indispensable to the maintenance of the action in the first and third classes of cases. In the second, the essential elements are, a letting into possession upon a supposed sale, and the prevention of its consummation by the act of the defendant. A principle common to all the classes is, that there must exist a relation between the parties, founded on an express or implied contract, which estops the defendant from drawing the title of the owner into the controversy, and “which is clearly distinguishable from that of the true owner and a naked trespasser, or an adverse, hostile possessor.” Under the statute, the action for use and occupation can not be maintained against a defendant who is in a position to set up adverse possession, and is holding adversely to the plaintiff, denying his title. — Fielder v. Childs, 73 Ala. 567; Stringfellow v. Curry, 76 Ala. 394. As the title to the land can not be drawn into the controversy, and collaterally tried in this action, the invalidity of the mortgage, executed by plaintiff to defendant in March, 1881, is. an immaterial inquiry. The mortgage, and the written instrument made by plaintiff in October, 1887, directing her tenant in possession to attorn to defendant, are material only as they may bear upon the question of an adverse holding. The entry into possession by a mortgagee, after the law-day of his mortgage, does not create the relation of landlord and tenant. He enters under his own independent claim of right and title; not by permission of the mortgagor, or in subordination to his title, though with his consent. Soon after taking possession, defendant sold under the power of sale in the mortgage, and was the purchaser. And the bill of exceptions states, referring to the time of the execution of the latter instrument, that “afterwards, and at once, the defendant went into possession of said land, and by its tenant has since continuously held the same, claiming said property as it own, and adversely to the plaintiff, and was so holding when this suit was brought.” Such holding possession and claim negative the implication of a tenancy, or of any relation from which similar rights and duties result as those from landlord and tenant, and show the relation of the owner and an adverse hostile possessor. On the admitted and uncontroverted facts, the action can not be maintained. Affirmed.