It is a well-settled principle of constitutional law, in Alabama, that statutes enacted by the Legislature are presumed to be constitutional, and will not be declared unconstitutional unless they so appear beyond all reasonable doubt. State ex rel. Vandiver v. Burke, Judge, 175 Ala. 561, 57 So. 870.
This principle applies to statutes adopted as a part of the Code in pursuance of section 85 of the Constitution of 1901.
Section 8003, new to the Code of 1923 and written therein by the Code Commission, was adopted along with the other statutes constituting Chapter 296 of the Code, among others section 8012, which provides: "The estate or merits of the title cannot be inquired into on the trial of any complaint exhibited under this chapter; but all legal and equitable defenses may be had against a recovery for damages or for the unlawful detention of the land."
These statutes are in pari materia constituting a system of law relating to the same subject, and must be so construed, if possible, as that they will not impinge each other or the provisions of section 168 of the Constitution which deny power to the Legislature to confer jurisdiction on justices of the peace to entertain "ejectment" for the recovery of the possession of lands. Doss v. State, 220 Ala. 34, 123 So. 231, 68 A.L.R. 712; City of Birmingham v. Southern Express Co.,164 Ala. 529, 51 So. 159.
This principle, in effect, was applied in Warren v. Jones,219 Ala. 213, 121 So. 519.
Applying this rule of construction, section 8003 of the Code would read: "The action of unlawful detainer provided for in this chapter shall lie in favor of the purchaser of lands sold under the power of sale in any mortgage or deed of trust against the mortgagor or grantor in such mortgage or deed of trust, or anyone claiming under them, upon the failure or refusal of such mortgagor or grantor, or anyone claiming under them, to deliver possession of such lands to the purchaser after ten days' demand in writing for such possession made by the purchaser," on showing such relation between the parties as that the plaintiff is not compelled to show title, but is justified in relying on the doctrine of estoppel foreclosing as between the parties an inquiry into the title.
The clear purpose of the statute being to extend the remedy so as to apply to the relation of landlord and tenant, whether the relation was conventional arising from contract of tenancy between the parties, covered by section 8001 of the Code, or by the operation *Page 317 of law on an existing contract relation, making applicable the doctrine of estoppel foreclosing an inquiry into title. Patterson v. Folmar, 125 Ala. 130, 28 So. 450; Nicrosi v. Phillipi, 91 Ala. 299, 8 So. 561.
The act of the Mississippi territory of 1805, carried into Aikin's Digest, pp. 202-204, some of the provisions of which have been brought into the present Code as section 8002, extended this remedy so as to apply to "tenant or tenants, for term of life or lives, year or years, or other person or persons, who are or shall be in possession of any lands, tenements, or hereditaments, by, from, or under, or by collusion with such tenant or tenants, shall willfully and without force, hold over any lands, tenements, or hereditaments, after demand and notice in writing given for the delivery of the possession thereof, by his, her, or their landlord or landlords, lessor or lessors, or the person orpersons to whom the remainder or reversion of such lands,tenements, or hereditaments shall belong, his, her, or their agent or attorney thereunto lawfully authorized, then such person or persons so holding over, shall be guilty of an unlawful detainer." (Italics supplied.) Aiken's Digest, p. 203, § 5. And in Stinson v. Gosset, 4 Ala. 170, it was held that the plaintiff, to recover, need not show that the tenancy was created by him, but could recover if he was entitled to the possession as a remainderman or reversioner, and this was so notwithstanding the statute then, as now, provided that "the estate or merits of the title shall in no wise be inquired into on a complaint which shall be exhibited by virtue of this act." Aikin's Digest, 2nd Edition p. 205, § 20.
The Code of 1852, § 2852, provided that: "An unlawful detainer is, where one who has lawfully entered into possession of lands or tenements, after the termination of his possessory interest, refuses, on demand in writing, to deliver the possession thereof to any one lawfully entitled thereto, his agent or attorney." This section was carried forward in the several Codes, without change, until amended by the Act of December 7, 1900 (Acts 1900-01, p. 173). The amended section in its present form first appeared in the Code of 1907 as section 4263. The effect of this amendment was to limit the action of unlawful detainer to the conventional relation of landlord and tenant arising from contract of tenancy between the parties.
All that the plaintiff in such action is required to show under said section, now section 8001 of the present Code, is " 'actual possession in himself prior in point of time to the inception of the wrongful possession of the defendant, prior to the beginning of the unlawful detainer by the defendant,'and in this sense the actual possession of the plaintiff'stenant" is plaintiff's possession. (Italics supplied.) Walker v. Adler, 216 Ala. 76, 112 So. 458, 459; Nicrosi v. Phillipi,91 Ala. 299, 8 So. 561; Hill v. Harris, 179 Ala. 614,60 So. 917.
By the foreclosure of the mortgage under the power of sale, the relation of mortgagor and mortgagee is abrogated and the mortgagor then becomes a tenant, holding at the will or by sufferance of the mortgagee-purchaser, depending upon whether he continues to hold by consent of the purchaser or because of the laches of the purchaser. American Freehold Land Mortgage Co. of London v. Turner, 95 Ala. 272, 11 So. 211; Thompson Co. v. Union Warehouse Co., 110 Ala. 499, 18 So. 105; Hughes Tidwell Supply Co. v. Carr et al., 203 Ala. 469, 83 So. 472; Welsh v. Phillips, 54 Ala. 309, 25 Am. Rep. 679; Sadler v. Jefferson, 143 Ala. 669, 39 So. 380; Comer v. Sheehan, 74 Ala. 452; Farris McCurdy v. Houston, 74 Ala. 162; Lamar v. Johnson, 16 Ala. App. 648, 81 So. 140; 41 C. J. p. 603, § 564, and cases cited under notes 93 and 94.
In Patterson v. Folmar, 125 Ala. 130, 28 So. 450, the defendant entered not as tenant but as purchaser, but by his default, under the terms of the contract, he became a tenant and was held liable to the action of unlawful detainer after demand and refusal to surrender possession.
After default and foreclosure, though the possession of the former mortgagor as such tenant may not be wrongful in its inception, it can be converted into a wrongful possession by notice to him to quit possession and his refusal to do so. A tenancy at sufferance "is in strictness not an estate, but a mere possession only. It arises when a person, after his right to the occupation, under a lawful title, is at an end, continues (having no title at all) in possession of the land without the agreement or disagreement of the person in whom the right of possession resides." Black's Law Dictionary, "Sufferance, tenancy at"; 2 Blackstone's Comm. 150. In a recent case this court has held that such holding over by the mortgagor is wrongful. Buchmann v. Callahan, ante. p. 240,131 So. 799.
The provision of the Constitution supposed to have been violated by the Legislature in adopting section 8003 into the Code is that found in section 168, "Justices of the peace, and the inferior courts in this section provided for, shall have jurisdiction in all civil cases where the amount in controversy does not exceed one hundred dollars, except in cases of libel, slander, assault and battery, and ejectment." (Italics supplied.)
It is too clear to permit of argument that the statute does not undertake to confer jurisdiction on justices of the peaceto try ejectment. As before stated, section 8012 provides that in an action of unlawful detainer *Page 318 the "merits of the title cannot be inquired into."
It is equally as clear that the evidence offered was not offered for the purpose of inquiring into the title, but for the limited purpose of showing the relation between the parties, that the defendant was a tenant at sufferance, and that his possessory right had terminated, and as a basis for the estoppel that prevents defendant, as well as the plaintiff, from inquiring into the merits of the title in the action of unlawful detainer. There is nothing in the Constitution that inhibits the Legislature from authorizing proof before a justice of the peace, in such action, that the defendant's right to possession has terminated. This the plaintiff must do in the action of unlawful detainer if he would succeed. Patterson v. Folmar, supra, Farley v. Bay Shell Road Co.,125 Ala. 184, 27 So. 770; Dent v. Stovall et al., 200 Ala. 193,75 So. 941; Bailey v. Blacksher Co., 142 Ala. 254, 37 So. 827; Barefoot v. Wall, 108 Ala. 327, 18 So. 823.
A written lease might be evidence of title, in a proper case, still it would be admissible in an action of unlawful detainer to show the relation of landlord and tenant. Patterson v. Folmar, 125 Ala. 130, 28 So. 450.
The doctrine of estoppel does not operate merely on title, but it operates to foreclose inquiry as to the relation under which the tenant holds as well. Beck v. Glenn, 69 Ala. 121; Howard v. Jones, 123 Ala. 488, 26 So. 129.
If the mortgagor in possession after foreclosure is a tenant at will or by sufferance, he is the tenant of the mortgagee-purchaser, and so long as he remains in possession as such tenant he cannot dispute the title of the landlord as a defense to unlawful detainer. If he would do this, he must proceed under sections 8024-8026, and remove the case for trial to the circuit court.
This interpretation of the statutes affords to the landlord a speedy remedy to oust one who is without right, and at the same time protects the defendant and gives him a remedy by which he may protect his possession and test the plaintiff's title in a court of competent jurisdiction. If this is not the very essence of due process of law, I have misconceived the force and meaning of these terms.
It certainly requires a strained application of the Constitution to say that the Legislature may authorize a recovery in unlawful detainer against a tenant by contract who has some color of right, and deny to it the power to authorize the action against a tenant at sufferance who has possession merely without right or color of right. This to my mind is a serious and an unwarranted restriction on the power of the legislature.
SAYRE and THOMAS, JJ., concur in the foregoing dissent.