페이지 이미지
PDF
ePub

14 of section 15, township 16, range 5. [6] From this it was evident the widow of Counts 4, 5, 6, and 7 follow substantially decedent, Nichols, rented or leased this propform 31, p. 1201, Code 1907, for use and ocerty twice to the defendant. Possession of cupation of land. Each count, after det land or actual occupancy of land is a fact, scribing the land, contains these words, "be- and a witness who knows the fact can teslonging to plaintiff."

tify to it. Steed v. Knowles, 97 Ala. 573, 12 The defendant pleaded in short by con- South. 75; Eagle v. Gibson, 62 Ala. 369; sent general issue with right to give in evi- Woodstock v. Roberts, 87 Ala. 436, 6 South. dence any matter that would be good in de- 349. fense of the action and with leave for plain- There was evidence tending to show that tiff to give in evidence any matter which the widow and minor children left this homewould be admissible in reply to the de- stead and the balance of the 70 acres of fensive matter; and the defendant also land a few months after the death of Harvey pleaded statute of limitations in short by M. Nichols; that this lot, with the residence consent.

and store on it, was rented to the defendant This lot, on which is erected the store and by the widow of the decedent, and the baldwelling, is 60 feet wide and 100 feet deep, ance of the 70-acre tract was rented to difand is a part of a 70-acre tract of land which ferent persons. was the homestead of Harvey M. Nichols at The evidence called for by this question the time of his death on December 17, 1897. was relevant as tending to show how long de He died intestate, leaving a widow, Savan- fendant was in possession of the lot under nah M. Nichols, who afterwards married the rent contract or the leases, or how long Alex Jones, and two minor children, Alma he remained on the lot by sufferance of the Nichols, who was eight years old on Novem- lessor after the expiration of the leases. We ber 28, 1897, and Oscår Nichols, who was find no evidence indicating exactly when five years old. Alma Nichols married J. H. the first or second lease commenced, or when Davis,

either ended, or how long the defendant used Alma Nichols Davis, witness for the plain and occupied the lot by sufferance of the tiff, testified:

owner after the expiration of the rent con"At the time of the death of my father, we

tracts. The plaintiff offered in evidence, aftwere living at Palos, on the old homestead, er showing Mrs. Nichols, widow of the dece. which property is the same property that was dont, with her minor children, were in poslater in part rented to G. W. Reed and is the session of the 70 acres of land after the subject of this suit."

death of Harvey M. Nichols, the following

papers: Application of the widow and proThe witness stated:

ceedings in the probate court to have, and a "That portion of the premises mentioned that decree of the court setting apart, this 70 was occupied by Mr. Reed was up on hill, near acres of land as a homestead to the widow the church. * It was a lot which she did and minor children of Harvey M. Nichols, not know the size of; that at the time defend- and a deed by said widow of decedent and ant G. W. Reed went into possession of the her husband, Alex Jones, dated January place it did have a building on it.”

10, 1919, conveying all their right, title, and [5] The court erred in sustaining objec- interest in the 70 acres to John H. Davis, the tion of the defendant to the following ques

plaintiff. tion asked this witness (Alma N. Davis) by

The defendant objected separately to the

introduction of this deed, and the different plaintiff:

proceedings in the probate court setting apart “Mrs. Davis, I will ask you to state whether the 70 acres as exempt to the widow and or not that homestead or a part of that prop- minor children of the decedent as a homeerty was occupied by Mr. Reed some time in stead, on the ground this evidence is an at1909 from then approximately up to some time tempt to prove title to the lot, which is not in 1919?"

permissible, and because irrelevant and inThe plaintiff was claiming in his complaint competent. The court sustained the objecreasonable rent for this property for 1919, tion of the defendant to this evidence sepand for use and occupation of this prop- arately offered, and the plaintiff duly ererty from December 4, 1914, to December cepted to each ruling of the court. 4, 1919; and there was proof tending to show [7] It is true this court, in Crabtree V. this property was rented to the defendant Street, 200 Ala. 442, 76 South. 374, wrote: soon after the death of Harvey M. Nichols by his widow. This conversation was be- fense had no proper place in the trial.”

“Evidence of title as a basis of action or detween plaintiff's attorney and the court during the trial in the presence of the jury:

This is a correct principle, and it is sus“The Court: Now, that is the deed by the tained by the authorities there cited. See, other child, pending the running of the previ- also, Burgess v. Am. Mortg. Co., 115 Ala. ously made lease by the mother.

“Mr. Harsh: Pending the first lease, prior to 468, 22 South. 282; Powell v. New England the execution of the first lease."

Mortg. Co., 89 Ala. 490, 8 South. 136.

[ocr errors][ocr errors][ocr errors][ocr errors][merged small]

(100 So.) [8] The widow of the decedent' was in the f of land by deed or by parol, and no specific actual or constructive possession of this land, sum has been agreed on as rent, reasonable when she rented or leased the lot to the de- rent or reasonable satisfaction may be refendant; her right to the continued posses- covered by the lessor or his assignee for the sion of the 70 acres was derived through the use and occupation thereof. Section 4753, probate court proceedings offered in evidence, Code 1907, subds. 1 and 3; and authorities, and they were admissible for the purpose supra. of showing the extent of her possession of

"The tenant cannot dispute his landlord's tithe property and for no other purpose; and tle, nor attorn to another claimant while in In this case this ruling would not be reversi- possession, except in cases provided otherwise ble error, as the extent of possession was not in this Code." Section 4731, Code 1907. in dispute. Whether these 70 acres were "The claim of the landlord for rent all the real estate owned by the decedent in may be by him assigned; and the assignee shall this state at the time of his death was im- be invested with all the landlord's rights, and

entitled to all his remedies for their enforcematerial to the issue in this cause. The

ment.” Section 4737, Code 1907. . court did not err in ruling out this evidence'; such evidence affected only the title of the In English v. Key, 39 Ala. 117, this court widow in the homestead, which could not stated: be inquired into in this cause. Mooty v.

“Rent is incident to reversion; and the lesDoyle, 1 Ala. App. 577, 55 South. 436; Barne- sor's transfer of the reversion, though without well v. Stephens, 142 Ala. 609, 38 South. 662: | the tenant's attornment to the assignee, or any Brady v. Huff, 75 Ala. 80; Turnley v. Han- express mention of the rent, carries with it Da, 82 Ala. 143, 2 South. 483, and authorities, the rent falling due thereafter. *

By supra.

the transfer of the reversion, and of the rent [9] The plaintiff sues to recover for rent afterwards falling due as incident thereto, the or for use and occupation of this lot, with lessee becomes bound to pay such rent to the store and dwelling on it, for the year 1919; for to the lessor.”

assignee, and is discharged from liability thereand he traces his right thereto in part hy the deed executed to him by Savannah Nich We find the same principle declared in ols Jones and her husband, dated January Pope v. Harkins, 16 Ala. 324. 10, 1919. The court erred in excluding this [10] This deed by Mrs. Jones and husband conveyance from the evidence. It was not to plaintiff was competent and relevant evirelevant or competent to show any title, if dence to show a transfer to plaintiff of her any, to the lot conveyed thereby to the plain- interest as lessor in the lease of the lot to tiff; but it was relevant, material, and coin the defendant. Plaintiff became entitled petent to show an assignment by the gran- | thereby to recover the rent from the lessee, tor, Savannah Nichols Jones, to the plaintiff the defendant, falling due after the execuof any rent for the lot under the lease due tion of this conveyance; and if the defend. ber by the defendant, maturing after Janu- ant (the lessee) when the conveyance was exary 10, 1919, the date of the conveyance, or ecuted, was remaining on the lot by the lesto show an assignment by her to the plaintiff sor's sufferance after the termination of the of her right to recover of the defendant for lease, then the plaintiff would be entitled use and occupation of the lot by him after by this conveyance to recover of the defend. January 10, 1919, the date of the conveyance, ant reasonable compensation for the use and for his remaining as her tenant on the land occupancy of the lot by him January 10, 1919, by her sufferance after the expiration of the the date of the conveyance. Tubb v. Fort, rent contract. This deed was relevant to 58 Ala. 277; Randolph v. Carlton, 8 Ala. 614; fix the time, its date after which plaintiff Smith v. Mundy, 18 Ala. 185, 52 Am. Dec. was entitled to recover the rent agreed on 221, and authorities supra. by the parties maturing for the lot from the [11] The plaintiff offered in evidence a defendant. It was relevant to fix the time, deed dated November 25, 1911, by Alma its date, from which plaintiff was entitled to Nichols to J. H. Davis conveying her interest recover from the defendant for use and oc- in this seventy acres of land to the plaintiff, cupation of the lot by him after his lease and a deed from Oscar T. Nichols and Alma terminated with the lessor, the grantor in Nichols dated January 29, 1914, conveying the conveyance; and it was relevant to fix their interest in this seventy acres of land to the time, its date, from which plaintiff was the plaintiff

. The court sustained the objec entitled to recover from the defendant, for tions of the defendant to the introduction in use and occupation of the lot by him, reason- evidence of these conveyances. In this rulable rent, if no specific sum has been agreeding the court was correct.

These grantory on as rent in the lease.

were at that time of age, over twenty-one When a tenant remains on the land by years old. These deeds could be no evidence sufferance of the lessor after the expiration of title to the lot as the title could not be of the rent or lease period, the lessor or his put in issue in this cause. Neither of the assignee may recover reasonable compensa- grantors in the conveyances were lessors of tion or satisfaction for the use and occupa- the lot to the defendant, so it could be no tion thereof. When there has been a demise evidence of an assignment of their interest

[merged small][ocr errors][merged small][merged small][ocr errors][ocr errors]

mon.

as lessors in the lot to the plaintiff. Author- fred from Court of Appeals under section 6, ities, supra.

p. 449, Acts 1911. Affirmed. [12] The plaintiff also offered in evidence

Denson & Denson, of Opelika, and James a letter dated August 26, 1912, written by J. Mayfield, of Montgomery, for appellant. Alma Nichols to the defendant, which reads

Sternfeld & Lobman, of Montgomery, and as follows:

T. D. Samford, of Opelika, for appellee.

"August 26, 1912. "Mr. G. W. Reed, Palos, Ala.-Dear Sir: MILLER, J. This is an action on the comYou are hereby notified not to pay any money mon counts by David Rothschild and Gerson for lease or rent to my mother on any of our Rothschild, partners under the firm name of property, as same is under adjustment.

David Rothschild & Co., against S. R. Solo“You are responsible to mę for one-third of the rent or lease money paid my mother or her agent for the use of our property. I have Counts 1, 2, and 3 are common counts; 1 made this request before and would thank you is on account, 2 on account stated, and 3 to acknowledge receipt of this notice, as it is for goods sold and delivered. Each of these final.

counts averred: "Yours truly, (Miss) Alma Nichols.”

"That so far as this debt is concerned the It appears from the evidence, which is con- defendant by a separate instrument in writing firmed by this letter, that the defendant had waived all right to have exempted to him any leased the property from the mother, the property which now or hereafter may be exwife of Harvey M. Jones, and was her tenant Empted to him under the Constitution and laws

of Alabama." at this time. There is no evidence that the defendant.ever attorned to Alma Nichols or Count 4 is for goods sold and delivered by recognized her as landlord. Under the stat- plaintiffs to the defendant, and it avers: ute (section 4731, Code 1907):

“And plaintiffs aver that as part of the con“The tenant cannot dispute his landlord's ti- sideration therefor the defendant, by a sepatle nor attorn to another claimant while in rate instrument in writing executed by the depossession, except in cases provided in this fendant, waived all right to have exempted to Code."

him any property which now or hereafter may

be exempt to him under the Constitution and The court did not err in excluding this laws of Alabama." letter from the consideration of the jury. Authorities, supra.

Each count was for the same amount,

It is unnecessary to For the errors mentioned, the judgment is $447.67, with interest. reversed, and the cause remanded.

state the nature of the pleas filed by the deReversed and remanded.

fendant in view of the assignments of error

and admissions in briefs of appellant and ANDERSON, C. J., and SAYRE and appellee. GARDNER, JJ., concur.

The jury returned a verdict in favor of plaintiffs for $466.21, and also found for the plaintiffs on the question of waiver of eremptions. The court rendered judgment for

plaintiffs for that amount and directed SOLOMON v. DAVID ROTHSCHILD & Co. against the judgment, and the execution to (5 Div. 886.)

be issued thereon, there is no exemptions of (Supreme Court of Alabama. May 1, 1924. said defendant as to personal property. This Rehearing Denied May 22, 1924.) appeal is prosecuted by the defendant from

that judgment. Exemptions On92—Writing waiving exemption

In August, September, and October, 1922, became “written contract" within statute when goods were sold and delivered.

the plaintiffs sold and delivered to the de

fendant seven lots of merchandise aggregatWritten instrument to obtain credit, waiving exemption rights, held to become "written ing $647.67, and on October 14, 1922, defendcontract” when plaintiff sold and delivered ant paid plaintiffs $200, leaving a balance goods thereunder and compliance with Code due of $147.67, which is the amount claimed 1907, § 4232, providing that waiver of exemp- by plaintiffs in each count of the complaint, tion to personal property may be by writing with interest. On February 6, 1922, the desubscribed by party or included in other writ- fendant executed and delivered to plaintiffs ten contract.

a written statement, addressed to the plain. [Ed. Note.-For other definitions, see Words tiffs. In it he states his assets, describing and Phrases, Written Contract.]

them, and his liabilities. Then follows the

following written statement: Appeal from Circuit Court, Lee County; S. L. Brewer, Judge.

"The above is a full and correct statement

of my or our financial condition as of Action on account by David Rothschild & 191, and is made to David Rothschild & Co. Co., against S. R. Solomon. Judgment for for the purpose of obtaining credit now or hereplaintiffs, and defendant appeals. Transfer-/ after, or for the purpose of obtaining an ex

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[ocr errors][merged small]

are

[ocr errors][ocr errors]

(100 So.) tension on indebtedness already due them. , written contract executed by him. This inThe same shall be binding for subsequent pur- strument is in writing. It was executed by chases unless written notice of a change shall the defendant. It contained a waiver of be given by the undersigned. Title to the above property is in the name of the under- exemptions as to personal property as to any signed and no mortgages or liens are upon it: ed in favor of plaintiffs by the defendant.

indebtedness which may be thereafter createxcept as set out above. In consideration of credit beretofore extended, or to be extended

Is this written instrument a contract ? upon faith in above statement, it is agreed that This is an action of assumpsit, based on the all state and national homestead or exemption common counts. We find this text in 5 rights are hereby waived relative to any indebt- Corpus Juris, p. 1381, headnote 28, on this edness now existing or which may be hereafter subject : created in favor of David Rothschild & Co. Such waiver applies to all property now owned, "To support an action of assumpsit there or hereafter acquired by the undersigned, and must be a contract, express or implied in law, in the event of bankruptcy, the trustee in bank- between the parties to the action"-which text ruptcy is directed to turn over or assign to Da- is supported by the following Alabama cases: vid Rothschild & Co. a sufficient amount of Ivy Coal, etc., v. Long, 139 Ala. 535, 36 South. my or our homestead or exemptions of any 722; Fuller v. Duren, 36 Ala. 73, 76 Am. Dec. kind, under law, to satisfy any indebtedness I 318; Weaver v. Jones, 24 Ala. 420; Crow v. or we may then be due David Rothschild & Bord, 17 Ala. 51, Co." The defendant objected to the introduc

In Keel v. Larkin, 72 Ala. 502, this court tion of the foregoing instrument in evidence,

wrote:
because it purports to waive exemptions as "Both express and implied contracts
to personal property by defendant and it is founded upon the actual agreement of the par-
not separate instrument in writing; the ties, the only distinction between them being
waiver is not included in any bond or bill of as to the mode of proof, or evidence by which
exchange or promissory note or other writ- they are substantiated." 13 C. J. 242, head-

note 40.
ten contract executed by the defendant. The
court overruled the objections, admitted it in
evidence, and an exception was duly reserv-

See, also, Montgomery v. Montgomery Wa-
ed by the defendant to the ruling of the terworks Co., 77 Ala. 248, 254.
court. The defendant on same grounds mov-

In 13 Corpus Juris, 237, we find this: "A ed to exclude this written instrument from contract is an agreement which creates an obthe evidence in the case, it was overruled by ligation.” And in 13 Corpus Juris, p. 239, the court, and an exception to this ruling of headnote 13, we see this text: “A proposal the court was reserved by the defendant. when accepted becomes a promise." The court refused to give this written charge

Was this written instrument intended by by the defendant to the jury:

the parties as a contract, waiving exemp

tions as to personal property? Was this "I charge you, gentlemen of the jury, that written proposal for obtaining credit made under the evidence in this case you cannot by the defendant to the plaintiffs accepted find for the plaintiff on the question of exemp- by them? What does the instrument signed tions."

by the defendant state? It was signed and These are the three errors assigned by the delivered by the defendant to the plaintiffs. defendant, the appellant.

All of the goods involved in this suit were Section 4232 of the Code of 1907 reads as sold and delivered by plaintiffs to the defend. follows:

ant after this instrument was executed. The

instrument shows on its face that the state. "As to personal property, the traiver may be ment "is made to David Rothschild & Co. for made by a separate instrument in writing, subscribed by the party making the same, or the purpose of obtaining credit now or here. it may be included in any bond, bill of exchange, after.

The same shall be binding promigsory note, or other written contract ex- for subsequent purchases. ecuted by him."

sideration of credit to be extended upon faith

in above statement, it is agreed that all This waiver of exemptions as to personal state

exemption rights are hereby property was executed by the defendant; but waived relative to any indebtedness, it is not included in a bond, a bill of ex- which may be hereafter created in favor of change, or a promissory note. The instru- David Rothschild & Co." ment offered and introduced in evidence, con We also find the defendant proposed and taining the waiver, is neither a bond, nor directed in this written statement to plaina bill of exchange, nor a promissory note. tiffs this: The statute permits the waiver of exemp

[ocr errors]
[ocr errors]

In con

[ocr errors]
[ocr errors]

“In event of bankruptcy, the trustee in bank. tions as to personal property to be made by

ruptcy is directed to turn over

to Da. a separate instrument in writing, subscribed vid Rothschild & Co., a sufficient amount of my by the party making the same. The waiver

* exemption of any kind, under law, of exemptions as to personal property under to satisfy any indebtedness I may then be due the statute may be included in any other David Rothschild."

01

The defendant on October 10, 1922, wrote , defendant until it was accepted by plaintiffs plaintiffs that the amount owing was not and credit was extended defendant by plaindue, but he would send check Monday with- tiffs selling and delivering goods to him; then out fail, etc. The letter further states: the written proposal ripened into a written

"In regards to the statement you have on contract, waiving exemptions as to personal file from me it still holds good also I have property to secure the payment of the debt made you a good customer. I must ask you to created. ship me the goods so that I will have the goods It is clear and evident from the evidence here by Saturday and you can look for my check that by this written instrument, signed by Monday without fail hoping this is satisfactory, the defendant, he agreed thereby in writing I am."

impliedly to pay plaintiffs for any indebtedThe plaintiff wrote defendant on October ness for merchandise that they sold him 12, 1922, in reply to that letter of October thereafter, and expressly agreed and waived 10th, that they were entitled to at least $200 therein in writing his exemptions as to perbefore making shipment of the goods. This sonal property as to any such debt created letter states:

by him with them. Under that written in“Also we note you signed your letter on the from and contracted the debt involved in

strument the defendant purchased the goods typewriter, and we desire that you write us another_letter stating that the statement made this suit with plaintiffs, and expressly waived as on February 6, 1922, still holds good, and his exemptions as to personal property as to sign your name to this letter in ink, as a type- the indebtedness thereby created, and he imwritten signature is no good. We hope you pliedly agreed therein to pay this debt creat. will let us hear from you by return mail, with ed by him. When the plaintiffs sold and de your check for $200.00, and also your letter livered the goods to the defendant under that stating that the statement still holds, good written instrument, it became then a written with your name signed with pen and ink."

contract, signed by the defendant with an The defendant wrote plaintiff this letter on implied promise of the defendant to pay that October 13, 1922:

indebtedness to the plaintiffs, and it included “Opelika, Ala., Oct. 13/22.

an express agreement waiving his exemp“David Rothschild & Co., Columbus, Ga.- tions as to personal property to secure its Gentlemen: As per your request, you will find payment. This complied with the requireinclosed check for $200.' Kindly ship me the ments of the statute. Section 4232, Code goods at once.

1907; authorities, supra. See, also, Pincus "In regard to the statement you have it still v. Meinhard & Bro., 139 Ga. 365, 77 S. E. holds good, with best wishes, I am,

82, 32 Am. Bankr. R. 123, in which a similar "Yours truly,

written statement under similar circum“[Signed] S. R. Solomon."

stances is beld to be a valid written contract It appears without dispute plaintiffs sold of waiver of exemptions. defendant goods amounting, on October 9, The court did not err in admitting in evi1922, to the sum of $235.07; October 10, dence that written instrument, and in refus1922, $166.05; October 17, 1922, $5.15; and ing the general affirmative charge requested October 23, 1922, $118.98–all of which is in- by the defendant in his favor. volved in this suit-and the goods of these The appellant insists this written instrudates were not shipped by plaintiffs to the ment waiving exemptions as to personal propdefendant until after they received the letter erty is not a separate instrument in writing, of October 13th from the defendant.

which is required and contemplated by one The defendant by the written statement alternative of the statute (section 4232, Code applied to plaintiffs to obtain credit, and, in 1907) in order to waive exemptions as to perevent credit was extended him by them, he sonal property. The appellee contends that expressly agreed to waive therein all state it is, and that it fully complies with that alexemptions as to personal property as to any ternative part of the statute, and that it was indebtedness which may thereafter be creat- properly admitted by the court thereunder in ed in favor of plaintiffs by him, and he im- evidence. This we need not discuss. pliedly promised therein to pay the indebted- We find no error in the rulings of the court ness.

assigned as errors by the appellant, and the At the time this instrument was signed and judgment is affirmed. the proposal therein was made to waive ex- Affirmed. emptions to obtain credit and it was delivered to the plaintiffs, it had no binding force ANDERSON, a. J., and SAYRE and or effect; it did not become binding on the | GARDNER, JJ., concur.

« 이전계속 »