1/4 of section 15, township 16, range 5.1 Counts 4, 5, 6, and 7 follow substantially form 31, p. 1201, Code 1907, for use and occupation of land. Each count, after de scribing the land, contains these words, "belonging to plaintiff." The defendant pleaded in short by consent general issue with right to give in evidence any matter that would be good in defense of the action and with leave for plaintiff to give in evidence any matter which would be admissible in reply to the defensive matter; and the defendant also pleaded statute of limitations in short by consent. This lot, on which is erected the store and dwelling, is 60 feet wide and 100 feet deep, and is a part of a 70-acre tract of land which was the homestead of Harvey M. Nichols at the time of his death on December 17, 1897. He died intestate, leaving a widow, Savannah M. Nichols, who afterwards married Alex Jones, and two minor children, Alma Nichols, who was eight years old on November 28, 1897, and Oscar Nichols, who was five years old. Alma Nichols married J. H. Davis. [6] From this it was evident the widow of decedent, Nichols, rented or leased this property twice to the defendant. Possession of land or actual occupancy of land is a fact, and a witness who knows the fact can testify to it. Steed v. Knowles, 97 Ala. 573, 12 South. 75; Eagle v. Gibson, 62 Ala. 369; Woodstock v. Roberts, 87 Ala. 436, 6 South. 349. There was evidence tending to show that the widow and minor children left this homestead and the balance of the 70 acres of land a few months after the death of Harvey M. Nichols; that this lot, with the residence and store on it, was rented to the defendant by the widow of the decedent, and the balance of the 70-acre tract was rented to different persons. The evidence called for by this question was relevant as tending to show how long defendant was in possession of the lot under the rent contract or the leases, or how long he remained on the lot by sufferance of the lessor after the expiration of the leases. We find no evidence indicating exactly when the first or second lease commenced, or when 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: "At the time of the death of my father, we were living at Palos, on the old homestead, which property is the same property that was later in part rented to G. W. Reed and is the subject of this suit." The witness stated: owner after the expiration of the rent contracts. The plaintiff offered in evidence, after showing Mrs. Nichols, widow of the decedent, with her minor children, were in possession of the 70 acres of land after the death of Harvey M. Nichols, the following papers: Application of the widow and proceedings in the probate court to have, and a decree of the court setting apart, this 70 acres of land as a homestead to the widow and minor children of Harvey M. Nichols, and a deed by said widow of decedent and her husband, Alex Jones, dated January 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 question asked this witness (Alma N. Davis) by plaintiff: "That portion of the premises mentioned that was occupied by Mr. Reed was up on hill, near the church. * * It was a lot which she did not know the size of; that at the time defendant G. W. Reed went into possession of the place it did have a building on it." "Mrs. Davis, I will ask you to state whether or not that homestead or a part of that property was occupied by Mr. Reed some time in 1909 from then approximately up to some time in 1919?" plaintiff. The defendant objected separately to the introduction of this deed, and the different proceedings in the probate court setting apart the 70 acres as exempt to the widow and minor children of the decedent as a homestead, on the ground this evidence is an attempt to prove title to the lot, which is not 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 exerty from December 4, 1914, to December 4, 1919; and there was proof tending to show this property was rented to the defendant soon after the death of Harvey M. Nichols by his widow. This conversation was befense had no proper place in the trial.” tween plaintiff's attorney and the court during the trial in the presence of the jury: "The Court: Now, that is the deed by the other child. pending the running of the previously made lease by the mother. "Mr. Harsh: Pending the first lease, prior to cepted to each ruling of the court. [7] It is true this court, in Crabtree v. Street, 200 Ala. 442, 76 South. 374, wrote: "Evidence of title as a basis of action or de This is a correct principle, and it is sustained by the authorities there cited. See, also, Burgess v. Am. Mortg. Co., 115 Ala. 468, 22 South. 282; Powell v. New England (100 So.) of land by deed or by parol, and no specific sum has been agreed on as rent, reasonable rent or reasonable satisfaction may be recovered by the lessor or his assignee for the use and occupation thereof. Section 4753, Code 1907, subds. 1 and 3; and authorities, supra. [8] The widow of the decedent was in the actual or constructive possession of this land, when she rented or leased the lot to the defendant; her right to the continued possession of the 70 acres was derived through the probate court proceedings offered in evidence, and they were admissible for the purpose 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 widow in the homestead, which could not be inquired into in this cause. Mooty v. Doyle, 1 Ala. App. 577, 55 South. 436; Barnewell v. Stephens, 142 Ala. 609, 38 South. 662; Brady v. Huff, 75 Ala. 80; Turnley v. Hanna, 82 Ala. 143, 2 South. 483, and authorities, supra. In English v. Key, 39 Ala. 117, this court stated: "Rent is incident to reversion; and the lessor's transfer of the reversion, though without the tenant's attornment to the assignee, or any express mention of the rent, carries with it * By the rent falling due thereafter. * the transfer of the reversion, and of the rent afterwards falling due as incident thereto, the lessee becomes bound to pay such rent to the assignee, and is discharged from liability therefor to the lessor." We find the same principle declared in Pope v. Harkins, 16 Ala. 324. [10] This deed by Mrs. Jones and husband to plaintiff was competent and relevant evidence to show a transfer to plaintiff of her interest as lessor in the lease of the lot to the defendant. Plaintiff became entitled thereby to recover the rent from the lessee, the defendant, falling due after the execution of this conveyance; and if the defend [9] The plaintiff sues to recover for rent or for use and occupation of this lot, with store and dwelling on it, for the year 1919; and he traces his right thereto in part by the deed executed to him by Savannah Nichols Jones and her husband, dated January 10, 1919. The court erred in excluding this I conveyance from the evidence. It was not relevant or competent to show any title, if any, to the lot conveyed thereby to the plaintiff; but it was relevant, material, and conpetent to show an assignment by the grantor, Savannah Nichols Jones, to the plaintiff of any rent for the lot under the lease due her by the defendant, maturing after Janu-ant [the lessee] when the conveyance was exary 10, 1919, the date of the conveyance, or to show an assignment by her to the plaintiff of her right to recover of the defendant for use and occupation of the lot by him after January 10, 1919, the date of the conveyance, for his remaining as her tenant on the land by her sufferance after the expiration of the rent contract. This deed was relevant to fix the time, its date after which plaintiff was entitled to recover the rent agreed on by the parties maturing for the lot from the defendant. It was relevant to fix the time, its date, from which plaintiff was entitled to recover from the defendant for use and occupation of the lot by him after his lease terminated with the lessor, the grantor in the conveyance; and it was relevant to fix the time, its date, from which plaintiff was entitled to recover from the defendant, for use and occupation of the lot by him, reasonable rent, if no specific sum has been agreed on as rent in the lease. ecuted, was remaining on the lot by the lessor's sufferance after the termination of the lease, then the plaintiff would be entitled by this conveyance to recover of the defendant reasonable compensation for the use and occupancy of the lot by him January 10, 1919, the date of the conveyance. Tubb v. Fort, 58 Ala. 277; Randolph v. Carlton, 8 Ala. 614; Smith v. Mundy, 18 Ala. 185, 52 Am. Dec. 221, and authorities supra. [11] The plaintiff offered in evidence a deed dated November 25, 1911, by Alma Nichols to J. H. Davis conveying her interest in this seventy acres of land to the plaintiff, and a deed from Oscar T. Nichols and Alma Nichols dated January 29, 1914, conveying their interest in this seventy acres of land to the plaintiff. The court sustained the objec tions of the defendant to the introduction in evidence of these conveyances. In this ruling the court was correct. These grantors 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 as lessors in the lot to the plaintiff. Author- red from Court of Appeals under section 6, ities, supra. p. 449, Acts 1911. Affirmed. [12] The plaintiff also offered in evidence a letter dated August 26, 1912, written by Alma Nichols to the defendant, which reads as follows: "August 26, 1912. "Mr. G. W. Reed, Palos, Ala.-Dear Sir: You are hereby notified not to pay any money for lease or rent to my mother on any of our property, as same is under adjustment. "You are responsible to me for one-third of the rent or lease money paid my mother or her agent for the use of our property. I have made this request before and would thank you to acknowledge receipt of this notice, as it is final. "Yours truly, (Miss) Alma Nichols." Denson & Denson, of Opelika, and James J. Mayfield, of Montgomery, for appellant. Sternfeld & Lobman, of Montgomery, and T. D. Samford, of Opelika, for appellee. MILLER, J. This is an action on the common counts by David Rothschild and Gerson Rothschild, partners under the firm name of David Rothschild & Co., against S. R. Solo mon. Counts 1, 2, and 3 are common counts; 1 is on account, 2 on account stated, and 3 for goods sold and delivered. Each of these counts averred: "That so far as this debt is concerned the defendant by a separate instrument in writing waived all right to have exempted to him any property which now or hereafter may be exempted to him under the Constitution and laws It appears from the evidence, which is confirmed by this letter, that the defendant had leased the property from the mother, the wife of Harvey M. Jones, and was her tenant at this time. There is no evidence that the defendant.ever attorned to Alma Nichols or recognized her as landlord. Under the stat-plaintiffs to the defendant, and it avers: ute (section 4731, Code 1907): "The tenant cannot dispute his landlord's title nor attorn to another claimant while in possession, except in cases provided in this Code." The court did not err in excluding this letter from the consideration of the jury. Authorities, supra. For the errors mentioned, the judgment is reversed, and the cause remanded. Reversed and remanded. of Alabama." Count 4 is for goods sold and delivered by "And plaintiffs aver that as part of the consideration therefor the defendant, by a separate instrument in writing executed by the defendant, waived all right to have exempted to him any property which now or hereafter may be exempt to him under the Constitution and laws of Alabama." Each count was for the same amount, It is unnecessary to $447.67, with interest. state the nature of the pleas filed by the defendant 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 exemptions. 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.) (Supreme Court of Alabama. May 1, 1924. Rehearing Denied May 22, 1924.) Exemptions 92-Writing waiving exemption became "written contract" within statute when goods were sold and delivered. be issued thereon, there is no exemptions of said defendant as to personal property. This appeal is prosecuted by the defendant from that judgment. In August, September, and October, 1922, the plaintiffs sold and delivered to the deWritten instrument to obtain credit, waiv- fendant seven lots of merchandise aggregating exemption rights, held to become "written ing $647.67, and on October 14, 1922, defendcontract" when plaintiff sold and delivered goods thereunder and compliance with Code 1907, § 4232, providing that waiver of exemption to personal property may be by writing subscribed by party or included in other writ ten contract. [Ed. Note. For other definitions, see Words and Phrases, Written Contract.] Appeal from Circuit Court, Lee County; S. L. Brewer, Judge. Action on account by David Rothschild & Co., against S. R. Solomon. Judgment for plaintiffs, and defendant appeals. Transfer ant paid plaintiffs $200, leaving a balance due of $447.67, which is the amount claimed by plaintiffs in each count of the complaint, with interest. On February 6, 1922, the defendant executed and delivered to plaintiffs a written statement, addressed to the plaintiffs. In it he states his assets, describing them, and his liabilities. Then follows the following written statement: "The above is a full and correct statement of my or our financial condition as of 191-, and is made to David Rothschild & Co. for the purpose of obtaining credit now or hereafter, or for the purpose of obtaining an ex (100 So.) Is this written instrument a contract? This is an action of assumpsit, based on the common counts. We find this text in 5 Corpus Juris, p. 1381, headnote 28, on this subject: tension on indebtedness already due them. 1 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, indebtedness which may be thereafter createxcept as set out above. In consideration of ed in favor of plaintiffs by the defendant. credit heretofore extended, or to be extended upon faith in above statement, it is agreed that all state and national homestead or exemption rights are hereby waived relative to any indebtedness now existing or which may be hereafter created in favor of David Rothschild & Co. Such waiver applies to all property now owned, or hereafter acquired by the undersigned, and in the event of bankruptcy, the trustee in bankruptcy is directed to turn over or assign to David Rothschild & Co. a sufficient amount of my or our homestead or exemptions of any kind, under law, to satisfy any indebtedness I or we may then be due David Rothschild & Co." The defendant objected to the introduction of the foregoing instrument in evidence, because it purports to waive exemptions as to personal property by defendant and it is not a separate instrument in writing; the waiver is not included in any bond or bill of exchange or promissory note or other written contract executed by the defendant. The court overruled the objections, admitted it in evidence, and an exception was duly reserved by the defendant to the ruling of the court. The defendant on same grounds moved to exclude this written instrument from the evidence in the case, it was overruled by the court, and an exception to this ruling of the court was reserved by the defendant. The court refused to give this written charge by the defendant to the jury: "To support an action of assumpsit there must be a contract, express or implied in law, between the parties to the action"-which text is supported by the following Alabama cases: Ivy Coal, etc., v. Long, 139 Ala. 535, 36 South. 722; Fuller v. Duren, 36 Ala. 73, 76 Am. Dec. 318; Weaver v. Jones, 24 Ala. 420; Crow v. Bord, 17 Ala. 51. In Keel v. Larkin, 72 Ala. 502, this court wrote: "Both express and implied contracts are founded upon the actual agreement of the parties, the only distinction between them being as to the mode of proof, or evidence by which they are substantiated." 13 C. J. 242, headnote 40. See, also, Montgomery v. Montgomery Waterworks Co., 77 Ala. 248, 254. In 13 Corpus Juris, 237, we find this: "A contract is an agreement which creates an obligation." And in 13 Corpus Juris, p. 239, headnote 13, we see this text: "A proposal when accepted becomes a promise." Was this written instrument intended by the parties as a contract, waiving exemptions 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 defendfollows: "As to personal property, the waiver may be made by a separate instrument in writing, subscribed by the party making the same, or it may be included in any bond, bill of exchange, promissory note, or other written contract executed by him." ant after this instrument was executed. The instrument shows on its face that the state- * We also find the defendant proposed and directed in this written statement to plaintiffs this: This waiver of exemptions as to personal property was executed by the defendant; but it is not included in a bond, a bill of exchange, or a promissory note. The instrument offered and introduced in evidence, containing the waiver, is neither a bond, nor a bill of exchange, nor a promissory note. The statute permits the waiver of exemptions as to personal property to be made by a separate instrument in writing, subscribed by the party making the same. The waiver of exemptions as to personal property under the statute may be included in any other David Rothschild." "In event of bankruptcy, the trustee in bankvid Rothschild & Co., a sufficient amount of my ruptcy is directed to turn over * to Dato satisfy any indebtedness I may then be due exemption of any kind, under law, * * The defendant on October 10, 1922, wrote plaintiffs that the amount owing was not due, but he would send check Monday without fail, etc. The letter further states: "In regards to the statement you have on file from me it still holds good also I have made you a good customer. I must ask you to ship me the goods so that I will have the goods here by Saturday and you can look for my check Monday without fail hoping this is satisfactory, I am." The plaintiff wrote defendant on October 12, 1922, in reply to that letter of October 10th, that they were entitled to at least $200 before making shipment of the goods. This letter states: "Also we note you signed your letter on the typewriter, and we desire that you write us another letter stating that the statement made as on February 6, 1922, still holds good, and sign your name to this letter in ink, as a typewritten signature is no good. We hope you will let us hear from you by return mail, with your check for $200.00, and also your letter stating that the statement still holds good with your name signed with pen and ink." defendant until it was accepted by plaintiffs and credit was extended defendant by plaintiffs selling and delivering goods to him; then the written proposal ripened into a written contract, waiving exemptions as to personal property to secure the payment of the debt created. It is clear and evident from the evidence that by this written instrument, signed by the defendant, he agreed thereby in writing impliedly to pay plaintiffs for any indebtedness for merchandise that they sold him thereafter, and expressly agreed and waived therein in writing his exemptions as to personal property as to any such debt created by him with them. Under that written infrom and contracted the debt involved in strument the defendant purchased the goods this suit with plaintiffs, and expressly waived his exemptions as to personal property as to the indebtedness thereby created, and he impliedly agreed therein to pay this debt created by him. When the plaintiffs sold and delivered the goods to the defendant under that written instrument, it became then a written 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: "Opelika, Ala., Oct. 13/22. "David Rothschild & Co., Columbus, Ga.Gentlemen: As per your request, you will find inclosed check for $200. Kindly ship me the goods at once. "In regard to the statement you have it still holds good, with best wishes, I am, "Yours truly, "[Signed] S. R. Solomon." It appears without dispute plaintiffs sold defendant goods amounting, on October 9, 1922, to the sum of $235.07; October 10, 1922, $166.05; October 17, 1922, $5.15; and October 23, 1922, $118.98-all of which is involved in this suit-and the goods of these dates were not shipped by plaintiffs to the defendant until after they received the letter of October 13th from the defendant. The defendant by the written statement applied to plaintiffs to obtain credit, and, in event credit was extended him by them, he expressly agreed to waive therein all state exemptions as to personal property as to any indebtedness which may thereafter be created in favor of plaintiffs by him, and he impliedly promised therein to pay the indebted ness. indebtedness to the plaintiffs, and it included an express agreement waiving his exemptions as to personal property to secure its payment. This complied with the requirements of the statute. Section 4232, Code 1907; authorities, supra. See, also, Pincus v. Meinhard & Bro., 139 Ga. 365, 77 S. E. 82, 32 Am. Bankr. R. 123, in which a similar written statement under similar circumstances is held to be a valid written contract of waiver of exemptions. The court did not err in admitting in evidence that written instrument, and in refusing the general affirmative charge requested by the defendant in his favor. The appellant insists this written instrument waiving exemptions as to personal property is not a separate instrument in writing, which is required and contemplated by one alternative of the statute (section 4232, Code 1907) in order to waive exemptions as to personal property. The appellee contends that it is, and that it fully complies with that alternative part of the statute, and that it was properly admitted by the court thereunder in evidence. This we need not discuss. We find no error in the rulings of the court assigned as errors by the appellant, and the judgment is affirmed. Affirmed. At the time this instrument was signed and the proposal therein was made to waive exemptions to obtain credit and it was delivered to the plaintiffs, it had no binding force or effect; it did not become binding on the GARDNER, JJ., concur. ANDERSON, C. J., and SAYRE and |