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The suits at law brought on these policies by Mrs. Raden's attorneys are clearly shown to have been instituted under a mistake of fact. Smith led these attorneys to believe that Langley was the agent of their client, and that the notice of cancellation given, and the return premium paid to him, effected a rescission of the policies in the defendant companies,—the Niagara Fire and the Hamburg-Bremen Insurance Companies. These suits cannot, for this reason, operate as a ratification by Mrs. Raden of the acceptance of the new policies, and as an intentional abandonment of her vested rights under the poliicies in existence when the loss occurred.
Our judgment is, that the chancellor did not err in holding the policies here in controversy to be binding on the insurers, and that his decree granting the relief prayed is free from error, and must be affirmed.
GARDNER 0. LANFORD et al.
(Supreme Court of Alabama. April 29, 1889.) EXECUTION-REDEMPTION-EMBLEMENTS.
Tenants by the year under a purchaser of land at sheriff's sale are entitled to the growing crops on redemption by the judgment debtor. Appeal from chancery court, Dallas county; Thomas W. COLEMAN, Chancellor.
Bill by A. V. Gardner against R. H. Lanford and others, to redeem certain land from execution sale. A demurrer to the bill was sustained in part, and complainant appeals.
Watts & Son and 8. W. John, for' appellant. White & White, for appellees.
MCCLELLAN, J. Appellant's lands were sold under execution on September 27, 1886, and bought by appellee Lanford. A part of the land being in the possession of the purchaser in 1888, he rented it for that year to appellees Savel and King, who entered thereon as his tenants, cultivated the land, and bad a valuable crop outstanding on it on the 24th day of September, 1888, at which time a tender and offer to redeem was made by appellant, which was declined by Ianford, and to effectuate which the bill in this case was filed. The bill contains, besides the usual allegations for redemption, other averments which set up a claim to the outstanding crops, and makes a case, on the assumption of the soundness of this claim, for an injunction to prevent the gathering and removal of the crops by the defendants. The injunction was issued in accordance with the prayer of the bill, for this and other purposes not important to consider here, and afterwards, by agreement of parties, a receiver was appointed for the crops. Demurrers were interposed to the bill generally for want of equity, and specially to those parts of it which asserted complainant's right to the crops, and sought an injunction with respect to them. The cause being submitted on the bill and demurrers, the chancellor overruled those grounds of objections which went to the general equity of the bill, and sustained the demurrers which set up the invalidity of complainant's claim to the crops. The decree in this last particular is assigned as error.
The one question presented by the record is whether the tenant of a purchaser at execution sale, or the debtor, who exercises the statutory right of redemption, is entitled to the crops growing on the lands at the time of redemption. The solution of this question depends, in our judgment, on the character of the tenancy of Ford and King. There of course can be no doubt that Lanford acquired the entire estate in these lands by the sale and conveyance of the sheriff. That which was left in the judgment debtor was not property, but a mere right, by the exercise of which, in the mode pointed out by the statute, he could revest the property in himself,--a privilege whicly he might or might not avail himself of, and, failing to exercise within the statutory limits of its existence, he forever lost. The rights of Lanford in The land within the redemption period were precisely the same as they would have been after its expiration, except that until the time had elapsed his title was subject to the privilege of purchase by the debtor or those claiming through him, and these rights embraced all that attend upon the ownership; among others, the right to the incomes and profits arising from the occupation of the land, and the right to lease it, and to receive rents. He did lease it for the year 1888. His lessees were entitled to hold for that year subject to a contingency which might terminate his estate and their tenancy before the end of the term. The contingency happened, the estate fell, and with it the tenancy terminated. It needs no argument to demonstrate that the term of the lessees, contingent from its inception on the exercise of the statutory privilege of redemption by the debtor,—the uncertain act of a third party, was itself uncertain, and, if the tender and offer to redeem were made in compliance with the law, was terminated at a time and in a manner which in legal contemplation was unexpected to the lessor and lessees. In such cases the rule is universal that the tenant is entitled to emblements, and, while his tenancy is at an end, he still has the rights of ingress, egress, and regress, for the purpose of reaping what he has sown. Conceding the manifest uncertainty of the tenants' term, the authorities are uniform in support of the cunclusion we have reached. 2 Wait, Act. & Def. 221-224; 4 Wait, Act. & Def. 252, 253; 1 Washb. Real Prop. 132; Tied. Real Prop. $ 71; Weems v. Bryan, 21 Ala. 303; Price v. Pickett, Id. 741.
The result thus attained is not inconsistent with any adjudged case or recognized text which has been cited by counsel. Authorities are referred to which hold that the redemption eo instanti reinvests the title in the debtor. There can be no doubt about the correctness of that proposition, but, so far as its effect on the question involved here is concerned, it but furnishes the predicate—the determination of the estates of the purchaser and his lessees in the land-upou which the doctrine of the tenants' subsequent right to emblements depends. The argument that the tenants in this cause should not be allowed einblements because Lanford would not have been entitled to them had he cultivated the land himself would apply with equal force to all cases in which the lessee's term is defeated by the lapse of the lessor's title through the occurrence of an unforeseen event, to the emasculation of the salutary doctrine, which has existed since the days of feudalism, that whenever a tenancy, other than at sufferance, is, from the first, of uncertain duration, and is unexpectedly terminated without fault of the tenant, he is entitled to emblements.
It is settled in this state that rents which the purchaser has received may be set off against his claim for permanent improvements; and doubtless rents which he had reserved, but which did not mature until after redemption, would, on general principles, belong to the redemptioner. It would be to the last degree inequitable to allow the redemptioner, on the one hand, to set off the purchaser's claim for improvements with the rents he had received from the tenants, or to receive such rents if they fall due after redemption, and, on the other, to take from these tenants the crops grown on lands, the rent for which he had either received, or had the benefit of, in his settlement with their landlord.
The effect of that part of the decree which is assigned as error was to deny the complainant's right, under these circumstances, to the emblements, and it is atlirmed.
END OF VOLUME 5.
NOTE. A star (*) indicates tbat the case referred to is annotated.
ABATEMENT AND RE- Evidence.
3. But although there has been a final ad-
justment of mutual demands, and a balance
count stated unless the amount such bal-
ance is shown.-Id.
4. Where only one or two items of an ac-
5. An account stated is open to impeach-
Against state, see States and State Officers,
By and against husband and wife, see Hus-
band and Wife, 25, 26.
partnership, see Partnership, 6, 7.
bailee, see Bailment.
executors, etc., see Executors and Ad-
ministrators, 21, 22.
For breach of covenant, see Covenants, 4-7.
libel, see Libel and Slander.
negligence, see Carriers, 2-10; Horse and
Street Railroads, 4-6; Master and Serv-
price, see Sale, 7–10.
Limitation of, see Limitation of Actions.
On bills and notes, see Negotiable Instru-
bonds, pleading, see Bonds, 1-3.
contracts, see Contracts, 11-17.
injunction bonds, see Injunction, 8-11.
insurance policies, see Insurance, 15-18.
Partition; Replevin; Trespass; Trover
To set aside tax-sale, see Taxation, 3.
Separate claims—Jurisdiction. 2275 and 2440, requiring that a title to effect a
1. A landlord may sue separately for each transfer must be in writing.--good faith and
2. Proceedings for condemnation of land in-
larities of procedure, constituted color of title,
under which the company could adversely
3. In ejectment, there was evidence that S.
cultivated the land until 1871; that he paid the
taxes and exercised acts of ownership until
ercised acts of ownership until he sold to de-
fendant, who took possession and exercised
Held, that the evidence warranted the sub-
mission to the jury of the question of adverse
holding, its connection and continuity.-Black
v. Pratt Coal & Coke Co., (Ala.) 89.
4. Where defendant in ejectment relies only
on adverse possession, it may be shown that
the continuity of his possession was broken by
dispossession under the judgment of a court
of competent jurisdiction, in an action of un-
lawful detainer.-Bishop v. Truitt, (Ala.) 154.*
5. Correspondence and transactions between
railroad company, occurring before execution
of the conveyance and covenants, may be ad.
mitted to prove the grantee's permissive oc-
cupation, and to rebut the idea of adverse
was brought to W., it was error for the court
to charge, without reference to such dis-
claimer and notice, that if plaintiff, and those
For taking deposition, see Deposition, 3, 4.
See Principal and Agent.
1. Under Civil Code La, art. 3478, providing Agricultural Department.
ALTERATION OF INSTRU- Jurisdictional amount.
5. Where the pleadings contain a specific
allegation stating definitely the value of the
object in dispute, and the record contains
6. Where, on appeal by an executor from a
7. Where a party resists the payment of a
the assessment, or of the mode of levy, and of
other irregularities involving the validity of
the tax, the amount of the tax claimed, and
is the matter of dispute. In such cases, if the
amount of the tax does not exceed $2,000 the
supreme court has no jurisdiction. -Johnson
8. The supreme court of Louisiana has no
jurisdiction of a suit instituted to have an at-
torney's privilege for his fee for less than
that sum.--Young v. Duncan, (La.) 861.
9. Under Code Prac. La. art. 318, rule 29 of
the civil district court of Orleans, which pro-
vides that appeals from city courts niust be
filed before the expiration of the tenth day
after the bond of appeal has been filed in the
in the computation of the time, the day on
day on which the transcript is required to be
filed in the appellate court. There is no dif-
ference between rule 29 of the civil district
10. Where an appeal at law is entered during
judgment appealed from was rendered, but
the appeal-bond is not given until after the
expiration of 30 days from the adjournment
11. The fact that an appeal-bond, on appeal
12. Where an appeal-bond has been given
Assignment of errors.
13. An assignment to the overruling of a
plea in abatement, which does not set out the
14. An appeal from a judgment will not be