I concur in the opinion of Justice BROWN and add the following:
The case is that of purchaser at his foreclosure sale under mortgage, who brings unlawful detainer for possession against the mortgagor. It is differentiated from a case by the purchaser at foreclosure sale who was not the mortgagee, but a third party. The latter case is within the proper construction of section 8003, Code of 1923, which confers the right to sue in unlawful detainer upon the purchaser at foreclosure. It does not extend to one holding under such purchaser. Farley v. Bay Shell Road Co., 125 Ala. 184, 27 So. 770.
In considering this case, it will be borne in mind that section 8003 became effective as law on August 17, 1924, while Womack v. Powers, 50 Ala. 5, was decided in 1873, Nicrosi v. Phillipi, 91 Ala. 299, 8 So. 561, in 1890, and Hill v. Harris,179 Ala. 614, 60 So. 917, in 1913 — all prior to the enactment of section 8003.
In the case at bar appellee relies upon Womack v. Powers, supra, to defeat the purpose of, or prevent the operation of, section 8003, Code. In that case Lee and others had purchased the lands at foreclosure sale under mortgage executed by Womack to McKellar, as trustee, and they (Lee and copurchasers) instituted unlawful detainer for the actual possession against the widow and daughter of deceased mortgagor. The defendant filed a bill against the plaintiffs and the justice of the peace of the court where unlawful detainer was pending, to enjoin further prosecution of that suit. On coming in of the answer on motion, the chancellor dissolved the injunction, and that decree and order were affirmed for the reason that equity will not enjoin an action at law, when the bill shows that complainant has a full and complete defense at law, saying that plaintiffs could not maintain the action because they had never had the actual possession, and constructive possession of land was not sufficient on which to rest that action, and would leave open a possible controversy as to title under the then existing statutes.
The jurisdiction of justices of the peace is limited by section 168 of the Constitution, denying the same in civil cases where the amount in controversy is in excess of $100, and in cases of "libel, slander, assault and battery, and ejectment." It was early decided that justices of the peace had jurisdiction in proceedings on writs of forcible entry and detainer, and that the value of the land in question was immaterial to that of the inquiry of actual possession. Ward v. Lewis. 1 Stew. 26. And in Ex parte Webb, 58 Ala. 109, it was *Page 319 declared that a person in possession of property sold at city tax sale, who refuses to deliver that possession to the purchaser, "shall not be guilty of unlawful detainer" under the provisions of the city charter so declaring. It was said:
"There is no prior possession on which he can rely — nor can it be asserted that the party in possession derived it from him, or by an entry under one deriving it from him. Unless the party proceeded against is deprived of all right of defense, or his right of defense is narrowed and circumscribed so that generally it would be valueless, there must, of necessity, be an inquiry into the estate, or merits of the title. The proceeding the statute authorizes, has, necessarily, more of the elements, and bears a greater analogy to an action of ejectment, or the statutory real action, than to an action of unlawful detainer, * * * and that suit for the recovery of possession, and damages for the detention, may be commenced before a justice of the peace, cannot be so construed as in effect to disseize a man of his freehold, and convert his estate into a mere right of action."
As to subtenants, it is held that unlawful detainer under section 8001, Code, is possessory and grows out of the relation of landlord and tenant, and that a re-renting or subletting, or any collusion by which other parties are placed in possession of a part of the premises, will not defeat the action. Edwards v. Louisville N. R. Co., 202 Ala. 463, 464(4), 80 So. 847,848. Mr. Justice Gardner said:
"The argument is based upon the contention that, under the provisions of section 4263 of the Code of 1907, an action of unlawful detainer can only be brought against a tenant, and the complaint is insufficient in that it fails to allege any demise to this defendant. While the complaint does not show a demise to the defendant herself, yet it does disclose a renting of the premises to the defendant's husband, and the possession of said premises by the defendant by virtue of her relationship as wife, and that therefore she was holding possession under the husband's tenancy. As said by this court in Giddens v. Bolling,92 Ala. 586, 9 So. 274:
" 'Although the action is possessory, and grows out of the relation of landlord and tenant, a re-renting, or subrenting, of a part of the premises, or any collusion by which other parties are placed in possession of a part of the premises, will not defeat the action.' "
The case last cited was an action of unlawful detainer against the surviving wife of plaintiff's lessee, and defendant (wife) entered into possession under the tenancy of the husband, as his wife; held sufficient allegation of the plaintiff's possession of the property, notwithstanding the words of the statute defining unlawful detainer — as where a tenant after notice refuses to deliver possession. This statement would be efficacious in a case where the landlord gives notice that has the effect of terminating the lease and tenancy before its expiration date. Ross v. Gray Eagle Coal Co., 155 Ala. 250, 46 So. 564; Cleveland v. Little Cahaba Coal Co., 205 Ala. 369, 87 So. 567.
The facts of the Jordan Case are that Sumners owned and possessed the land, and with his wife gave a mortgage to appellant Jordan, and the mortgagor remained in possession. After default of the mortgage requirements, there was due foreclosure, and the mortgagee bought the land at his sale. Delivery of possession was refused and unlawful detainer was instituted under section 8003 of the Code. Judgment was obtained before the justice of the peace, and on appeal to the circuit court the cause was dismissed on the ground that the justice of the peace had no jurisdiction. This ruling could only be justified on the ground that Jordan had not actual possession as imputed by the mortgage to him as mortgagee, or on the ground that section 8003 is invalid.
The relation of landlord and tenant, or a relation in the nature thereof, by reason of a mortgage, is thus stated in 41 Corpus Juris, p. 603, § 564, on the authority of Hughes Tidwell Supply Co. v. Carr, 203 Ala. 469, 83 So. 472, and Lamar v. Johnson, 16 Ala. App. 648, 81 So. 140:
"While the relation of mortgagee and mortgagor is not the conventional relation of landlord and tenant, unless there is some special provision in the mortgage to that effect, where the mortgagee is entitled to the possession of the mortgaged property, the mortgagor in possession is regarded as a tenant at will, or as a quasi tenant at will or by sufferance."
The English cases are cited to the effect that a mortgagor in possession of the premises by the sufferance of the mortgagee is a tenant within the strictest definition of that word. 7 Ecl. 330, 106, Reprint 1311. For such tenancy by sufferance generally, see 41 C. J. §§ 336-369.
The statutory remedy by unlawful detainer is provided by section 8001, extended to the mortgagor and the mortgagee by section 8003, and prohibition of inquiry into title is contained in section 8012, Code.
If the relation of mortgagee and mortgagor after default is that of landlord and tenant at will (Hughes Tidwell Supply Co. v. Carr, 203 Ala. 469, 83 So. 472; Lamar v. Johnson,16 Ala. App. 648, 81 So. 140), the mortgagee after default, and in this case after purchase at foreclosure sale, might have proceeded under section 8001 without the aid of section 8003. However this may be, a tenant is estopped to deny his landlord's title, and therefore that issue could not arise in this unlawful detainer; since the appellee in this case *Page 320 cannot question appellant's title after he executed and delivered to appellant a mortgage containing full covenants of warranty.
It may be further argued that appellant cannot prevail because he did not have actual possession before the default claimed. In the very nature of things, under the mortgage contract relations, he did not and could not. In this case the mortgagor had actual possession, warranted that he had it, and conveyed to mortgagee the title which carried with it the right of possession, but by consent the mortgagor remained in possession under the mortgage. The Legislature is presumed to have known the legal effect of the relationship of mortgagor and mortgagee when it enacted section 8003 and section 8012, and did so enact in recognition of the principle that the mortgagor's possession was that of a tenant at will, and that the relationship between the two was so closely akin to that of landlord and tenant that the validity of the section could not be successfully assailed. Such is our judgment.
In Alabama a mortgage of realty passes the legal title to the mortgagee, with right of possession, with or without foreclosure, after the law day. Crabtree v. Price, 212 Ala. 387,102 So. 605. From and after the execution and delivery of a mortgage of real estate, the mortgagee is entitled to possession of the real estate unless it is stipulated to the contrary in the mortgage. Trannon v. Towles, 200 Ala. 82,75 So. 458. And the general authorities are collected to the text that possession of a mortgagor after foreclosure, and indeed after default, is not adverse to the title of the purchaser, but subordinate to the mortgage. 42 C. J. 269. In Pugh v. Davis, 103 Ala. 316, 18 So. 8, 9, 49 Am. St. Rep. 30, it is declared:
"There are two questions which have been so long and repeatedly settled by this court, as to leave no room for their further discussion: (1) That in an action of this character, the merits of the title cannot be inquired into; and (2) that the tenant, continuing in and withholding possession from the landlord, cannot dispute his possessory title, no matter who has a better one. Nicrosi v. Phillipi, 91 Ala. 299, 8 So. 561; Houston v. Farris McCurdy, 71 Ala. 570; Norwood v. Kirby,70 Ala. 397; Womack v. Powers, 50 Ala. 5; Dwine v. Brown, 35 Ala. 597; Dumas v. Hunter, 25 Ala. 714; Clark v. Stringfellow,4 Ala. 353."
The provisions of section 8003, Code, if not unconstitutional, were the law when the mortgage was made by Sumners to Jordan, and therefore the mortgage was made in contemplation of the statute. It would not have been different if the parties had stipulated in the mortgage that after default and foreclosure and purchase by the mortgagee, he should have the right to sue for possession in unlawful detainer.
Aside from the criticism of the opinion in Nicrosi v. Phillipi, 91 Ala. 299, the illustrations of the relationship of landlord and tenant on page 305 of that decision, 8 So. 561, indicate the tendency of the courts to simplify the process by which the landlord, and all others in like relations or positions, may obtain the actual possession of land belonging to them, and to which as a matter of right, under the law and relation of the contract between the parties, they are entitled.
I have indicated that the facts of this case clearly distinguish it from Hill v. Harris, 179 Ala. 614, 60 So. 917, where the rights of third parties purchasing at foreclosure and sub-purchaser were involved and denied to be tested by unlawful detainer. This statute does not prevent a proper proceeding in the circuit court to try title, when title is injected therein.
The dissenting opinion above was presented on original hearing as that of the division of the court. A majority do not agree therewith, and I am constrained to respectfully dissent, as I have indicated above.
I make the observation that in the case of Powell v. Powell (Ala. Sup.) 132 So. 434,1 the plaintiff in unlawful detainer purchased at the bank's foreclosure sale, and in this case the mortgagee Jordan purchased at his own foreclosure sale; that the statute, section 8003, Code, was broad enough to cover both purchasers, and the statute is not offensive to organic law; and that expressions in Hill v. Harris, 179 Ala. 614,60 So. 917, should be modified. It may be further noted that the foreclosure deed was proper evidence, not as raising an issue of title, but for the purpose of showing the relation of the parties, the extent of the possession claimed, and the estoppel that is raised or which grew out of that relation and as affecting the immediate right of possession. Farley v. Bay Shell Road Co., 125 Ala. 184, 27 So. 770; Dent v. Stovall,200 Ala. 193, 75 So. 941.
In the case of Ex parte Webb, 58 Ala. 109, a petition for mandamus to the circuit court by a purchaser at tax sale, to dismiss appeal by the landlord, the tax purchaser brought unlawful detainer against the tenant in possession and on default judgment rendered for recovery and damages for detention. The landlord having intervened and sued out an appeal and petition by tax purchaser to dismiss the appeal, mandamus was denied; hence, the observation in Ex parte Webb, as follows (58 Ala. 112):
"There is no prior possession on which he can rely — nor can it be asserted that the party in possession derived it from him, or by an entry under one deriving it from him. Unless the party proceeded against is deprived of all *Page 321 right of defense, or his right of defense is narrowed and circumscribed so that generally it would be valueless, there must, of necessity, be an inquiry into the estate, or merits of the title. The proceeding the statute authorizes, has, necessarily, more of the elements, and bears a greater analogy to an action of ejectment, or the statutory real action, than to an action of unlawful detainer proper. A legislative declaration that the party withholding the possession is guilty of an unlawful detainer, and that suit for the recovery of possession, and damages for the detention, may be commenced before a justice of the peace, cannot be so construed as in effect to disseize a man of his freehold, and convert his estate into a mere right of action."
And in Webb v. Carlisle, Jones Co., 65 Ala. 313, an action for unlawful detainer before a justice of the peace, it was held that "he had no jurisdiction in an action involving the title to real estate, had no rightful jurisdiction of the subject-matter," and that "the legislature can not confer on justices of the peace jurisdiction to hear and determine civil causes, when the amount in controversy exceeds one hundred dollars. * * * This is the logical result of what we said in the case of Ex parte Webb, supra," quoting as we have set out above.
1 Post, p. 321.