Duncan v. Guy

ANDERSON, J. It is an elementary principle that, when a tenant enters into possession of land under a lease, he must surrender the possession to the landlord before he can assail or question the title under which he enters. — McAdam on Landlord & Tenant, 1341; Davis v. Williams, 130 Ala. 530, 30 South. 488, 54 L. R. A. 749, 89 Am. St. Rep. 55; Barlow v. Daham, 97 Ala. 414, 12 South. 293, 38 Am. St. Rep. 192. There is an exception to the general rule to the extent of permitting the tenant to show the termination of the landlord’s title, or that he has acquired same since the creation of the tenancy. Hammond v. Blue, 132 Ala. 337, 31 South. 357. “But while his relation of tenant, and possession as such, continues, he cannot avail himself of an outstanding title (which he may purchase) to dispute the title of his landlord, nor can he then effectively attorn to the person having an outstanding title in hostility to that of his landlord. He must first surrender the premises to his [528] landlord before assuming an attitude of hostility to the title or claim of title of the latter.” The complainant, in the case at bar, was the tenant of the respondent Johnson when he purchased the one-fifth interest of Mrs. Sanford, which was but an outstanding claim or title of a third person, and falls within the influence of the case, of Barlow v. Daham, supra; and, hot having restored the possession, he is estopped from disputing the title of his landlord. It is insisted by appellant’s counsel that .the restoration of the possession was, in effect, waived by the landlord, because of the fact that he accepted but four-fifths of the rent, and thereby acquiesced in the claim of complainant to a one-fifth interest in the land. Conceding that a restoration of the possession can be .waived, Ave do not think that a mere failure to collect and demand, each year, all of the rent, operated as a severance .of the relation or a restoration of the status in quo. The complainant testified that- he retained one-fifth of the rent because of having bought.the Sanford interest, hut does not set out enough to sIioav that Johnson Avaiv.ed a surrender of the premises or consented to.a..termination of the tenancy pro tanto- as. tp the-one-fifth interest of the-land. On-the other hand, Johnson testified:' “He has never surrendered the possession, of the land to me. I never, told Ur.. Duncan that I was satisfied AAdien he didn’t, pay me the. $50 rent, and 'only paid me $40. I didn’t , tell him that that Avas. satisfactory..” Nor does Duncan testify that Johnson consented to a termination and waived the restoration as to the one-fifth.interest. He merely. stated: . “It was perfectly satisfactory, so far, as I know.” . ■. The decree of the chancery court is affirmed. Doavdell, C„ J., and McClellan and Sayre, JJ., concur.