Opinion
7 Div. 401.
December 20, 1923. Rehearing Denied January 24, 1924.
Appeal from Circuit Court, Calhoun County; A. P. Agee, Judge.
Blackwell Bibb, of Anniston, and W. J. Brock, of Piedmont, for appellant.
To maintain unlawful detainer, plaintiff must prove that after termination of defendant's possessory interest, and more than 10 days before beginning of suit, he made written demand on defendant to deliver possession within 10 days after the service of the notice. Code 1907, § 4263; Ross v. Gray Eagle Coal Co., 155 Ala. 250, 46 So. 564; Eddins v. Galloway Coal Co., 205 Ala. 361, 87 So. 557; Dumas v. Hunter, 30 Ala. 75; Bates v. Ridgeway, 48 Ala. 611; Littleton v. Clayton, 77 Ala. 571. Secondary evidence of a written notice, or the contents thereof, is not admissible, unless the loss or destruction of the original is proved, or unless notice to produce is given. 22 C. J. 989; King v. Bolling, 77 Ala. 596; Brent v. Baldwin, 160 Ala. 635, 49 So. 343; Home Protection, etc., v. Whidden, 103 Ala. 203, 15 So. 567. In an action of unlawful detainer and for damages for unlawful detention of land, evidence of the value of the use and occupation of the land is not admissible, where there has been an agreement on the yearly rental. Code 1907, § 4273. Evidence of an offer of compromise, made before the bringing of the suit, is not admissible. Sandlin v. Kennedy, 165 Ala. 577, 51 So. 622.
Lapsley Carr, of Anniston, for appellee.
Action of unlawful detainer is not barred by statutory limitations of three years, where tenant in possession has, within three years of the beginning of the suit, promised to pay rent. King v. Bolling, 77 Ala. 594; Barefoot v. Wall, 108 Ala. 327, 18 So. 823; Barnewell v. Stephens, 142 Ala. 609, 38 So. 662. It is not necessary, under Code § 4263, that the 10 days' demand specify the date when the tenant is required to deliver possession; if notice to vacate is given after the termination of tenant's possessory right, suit may begin after 10 days from the giving of notice. Eddins v. Galloway Coal Co., 205 Ala. 361, 87 So. 557; Royal Lumber Co. v. Elsberry, 185 Ala. 462, 64 So. 71.
This is a suit for an unlawful detainer of land commenced on January 12, 1923, by G. B. Sharp against D. G. Smith in the justice of the peace court. There was judgment for the plaintiff, and the defendant appealed to the circuit court. In the circuit court the defendant pleaded general issue, and statute of limitations of three years under section 4272, Code 1907. To the plea of statute of limitations the plaintiff replied that the defendant "pending and within the time pleaded as a bar to the cause of action in this case has recognized the tenancy from the plaintiff, by paying or promising to pay rents to the landlord within such period." The case was tried by the court without a jury, judgment was rendered in favor of the plaintiff, and from it this appeal is prosecuted by the defendant.
The demurrers of the defendant to the replication of the plaintiff to the plea of statute of limitations were overruled by the court. This ruling of the court is assigned as error by the defendant, but it is not argued in his brief; so it will not be considered and reviewed by this court. Sokol Bros. Fur. Co. v. Gate, 208 Ala. 107, headnote 2, 93 So. 724; Hymes v. State, 209 Ala. 91, 95 So. 383.
This suit was commenced in the justice of the peace court on January 12, 1923. The undisputed evidence showed that on January 1, 1923, a written demand by plaintiff addressed to the defendant was handed to the defendant. The written demand handed to the defendant on January 1, 1923, was in his possession on the day of the trial, but was not in court. The defendant testified the written papers now offered in evidence by the plaintiff were shown to him when he was in court and the case was called for trial at another time, and to secure a continuance of the case he admitted "that the plaintiff had served notices on him similar to the ones now in court, but that he did not know at the present time whether he then understood that he was saying the two notices now offered in evidence were served on him; that they might have been a copy or something of that sort." There was evidence clearly indicating that this written demand for the land offered in evidence by the plaintiff was a correct copy of the written demand handed to the defendant January 1, 1923, and the court did not err in admitting it in evidence without producing the one given defendant, under the evidence and admissions of the defendant. Under the statute, section 4263, it is sufficient "to leave a copy of such demand in writing at the usual place of abode of the party holding over." Westbrook v. Fulton, 79 Ala. 510; Burnett Cigar Co. v. Art Wall Paper Co., 164 Ala. 547, 51 So. 263; Sandlin v. Anders, 205 Ala. 453, 88 So. 560.
There was evidence showing that the written notice to the defendant dated November 29, 1922, signed by plaintiff, terminating the tenancy, which was offered in evidence by the plaintiff, was a duplicate of the written notice handed to the defendant in November or December, 1922. It stated the tenancy was terminated to take effect on December 31, 1922, and demanded possession of the land within 10 days after December 31, 1923. The court did not err in admitting it in evidence without notice to produce the one handed to the defendant, under the evidence and admissions of the defendant. Westbrook v. Fulton, 79 Ala. 510; Sandlin v. Anders, 205 Ala. 453, 88 So. 560, and authorities supra.
The written notice to defendant to terminate the tenancy and the written notice demanding possession of the land, after the termination of the tenancy, were sufficient in form. Section 4263, Code 1907; Eddins v. Galloway Coal Co., 205 Ala. 361, 87 So. 557.
It is not necessary for the written demand for possession of the land to state any date when possession must be surrendered. The lessee has 10 days after a copy of the written demand is handed to him or after "a copy of it is left at his usual place of abode" to deliver possession to the lessor or to one lawfully entitled thereto. This suit was commenced on January 12, 1923; this was more than 10 days after a copy of the written demand for possession was handed to or left with the defendant on January 1, 1923. The defendant had the time allowed by the statute to surrender possession after receiving a copy of the written demand for it, before this suit was commenced by the plaintiff. Section 4263, Code 1907.
The court permitted the plaintiff over objection and exception of the defendant to prove the reasonable value for the use and occupation of the land per annum during the last three years. The witness answered that $15 or $20 would be the rental value. It is true the statute, section 4273, makes the lessee, when he wrongfully retains possession of the land after the expiration of his term, liable for double the amount of the annual rent agreed to be paid under the contract of lease and for such other special damages as may be thereby sustained by the party thus wrongfully kept out of possession. However, the proof was that defendant under his rent contract with plaintiff was to pay $5 rent per annum for the lands, and the court rendered judgment for $10 for damages for the detention of the land. So if the court erred in admitting this proof in evidence, it was without injury to the defendant under the judgment for damages rendered by the court. The court rendered judgment for only $10 damages for detention of the land, which was double the rental value of the land under the rent agreement for only one year. Section 4273, Code 1907.
Banks Clark, witness for plaintiff, testified that he had a conversation with defendant in the fall of 1922 in regard to a settlement of rents due plaintiff and possession of the land, when he told defendant that plaintiff bad left it up to witness and defendant to settle and any settlement they made would be all right. In December following, defendant came to witness and said, "How are you and Dr. Sharp (plaintiff) standing?" to which witness replied, "We are all right, I guess." The defendant said he "had a couple of yearlings, one big one and one small one, and that he would take $38 for them; that he was willing to give the plaintiff the cattle in payment of the indebtedness." Defendant told witness to see Dr. Sharp. This property was never delivered. The defendant's attorney then objected to an offer of compromise before the suit. The court overruled the objection, and the defendant excepted. This was competent and relevant evidence to the issues in the case. It was a voluntary admission by the defendant of an indebtedness to the plaintiff for the rent of the land and an offer to pay it in cattle. Baker v. Haynes, Henson Co., 146 Ala. 520, 40 So. 968; Matthews v. Farrell, 140 Ala. 298, 37 So. 325; 6 Michie (Evi.) p. 186, §§ 151-155 (2), inclusive.
The plaintiff was in possession of this land as owner prior to 1917. He rented it to the defendant verbally for the year 1917 for $5. Plaintiff testified defendant paid him rent for 1917, 1918, and 1919. There was evidence tending to show that defendant agreed to pay plaintiff rent for the years 1920, 1921, and 1922 when he sold his cotton; but he failed to do so.
The defendant testified he rented the land from the plaintiff for the year 1917, and paid him the rent, $5, for that year, and has paid no rent since then; "that he did tell Mr. Clark, whom plaintiff sent, that if he (defendant) owed plaintiff anything he would pay him; that there was a settlement between them; that this statement to Mr. Clark was the first time anything was said about any rent from 1917 to 1922 by anybody." A further discussion of the evidence is unnecessary.
This case was tried by the court without a jury. The witnesses were examined orally in his presence. His judgment on the facts has the weight of the verdict of a jury. It should not be disturbed unless clearly wrong. There is ample evidence tending to establish the plaintiff's right to a recovery, and the great weight of the evidence sustains the judgment of the court rendered in favor of the plaintiff. McMillan v. Aiken, 205 Ala. 35, headnotes 9-11, 88 So. 135; A. G. S. R. R. Co. v. Longshore, 209 Ala. 227, headnote 3, 96 So. 64. So we are constrained to affirm the judgment of the court.
The judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.