We state the facts as they appear of record:
March 9, 1915, F. C. Owens and others executed and delivered to Kelly a mortgage of lands in Hale county to secure an indebtedness then incurred. The mortgage was duly recorded.
March 8, 1923, Kelly died, and E. P. Walsh was appointed to administer upon his estate. As such administrator Walsh foreclosed the mortgage according to the power therein, and Carrie K. Walsh became the purchaser, and the administrator conveyed to her, April 28, 1924.
In May, 1924, Walsh, representing the plaintiff, appellant, notified the bank, appellee, that appellant had bought the land and would demand the rents for the current year.
"Neither said Walsh" — we quote the bill of exceptions — "nor anyone for the plaintiff, gave any written notice to tenants or to defendant regarding said rents at any time." There has been no written demand for possession of the land after foreclosure of the mortgage. "In the year 1924, prior to the foreclosure of the said mortgage to Kelly, said F. C. Owens had taken rent notes from a number of the tenants on said lands for the rent thereof for that year, payable to himself as agent, and had transferred and endorsed the same for a valuable consideration to defendant (the bank of Moundville). And said tenants at the time of said foreclosure were in possession of said lands under said rental contracts." In November, 1924, tenants, who had made the rent notes which had been transferred and indorsed to the bank, paid said notes to the bank, and the bank had refused to pay the amounts so received by it over to plaintiff on demand before the bringing of this suit. "No written notice that said rent was due plaintiff or written demand for the payment thereof to her was ever made by her, or on her behalf, on or to any of said tenants or said defendant at any time, and there was no attornment by said tenants to said plaintiff."
As shown by the opinion on the first appeal, the rent notes, which had been assigned by the mortgagor to the Bank of Moundville, became due and were paid by the tenants to the bank after foreclosure of the mortgage, and the question now at issue is whether the purchaser at the foreclosure sale or the mortgagor's assignee, claiming under an assignment made before foreclosure, had the better right to the proceeds of the notes paid by the tenants to the assignee of the mortgagor.
On the first trial judgment was rendered for plaintiff — as appears from the report of the case, 216 Ala. 116,112 So. 438 — and that judgment was reversed. On a second trial the court followed the opinion noted above, and, on appeal, the Court of Appeals (131 So. 51), following the decision of this court, approved the general charge requested by defendant.
In its former opinion (216 Ala. 116, 112 So. 438) this court appears to have laid stress upon section 5747 of the Code of 1907 — section 10143 of the present Code. That section deals with the right of redemption and the forfeiture of that right by the failure of the debtor or any one holding under him to comply with its provisions. And the right of appellant, plaintiff, purchaser at the foreclosure sale, to receive from the tenants of the debtor rents falling due after foreclosure depends upon different considerations. Appellant relies upon the proposition "firmly established in the law * * * that rent is an incident to the reversion; and that whoever is entitled to the reversion, at the time the rent becomes payable, is of right entitled to it, unless it is reserved from the grant, or has been previously severed." Tubb v. Fort, 58 Ala. 277, citing authorities. In that case it was further said: "It is not material whether the assignment of the reversion is by the act of the lessor, or by operation of law, the rent passes to the assignee." The rule aforestated *Page 166 was recognized by this court on the first appeal in this cause where Greenwood v. Bennett, 208 Ala. 683, 95 So. 159, and Davis v. Reed, 211 Ala. 207, 100 So. 226, were cited with comment.
The true basis of the opinion on former appeal appears to be found in still another proposition of law which was applied to the facts as they appear of record; viz., rent is an incident to the reversion, but each may be assigned without the other. There is no inseparable connection between the two. For aught appearing to the contrary, Owens in transferring the rent notes acted as agent for the mortgagor. If in fact he acted in his own interest as owner, mortgagor, that would make no difference in the application of the principle which suffices to determine this appeal. It appears to have been held that his transfer of the notes, before the foreclosure under which appellant claimed, worked a severance, and the rents, having been thus severed, did not pass as an incident to the reversion, and the bank was entitled as of right to retain them, its ownership unaffected by the subsequent foreclosure.
Upon further consideration the court is of a different opinion.
Unless it is made payable in advance, no claim for rent arises until the lessee has enjoyed the premises during the whole time for which the payment of rent is stipulated to be paid. Rent cannot be apportioned as to time. Whoever owns the reversion at the time the rental falls due is entitled to the entire sum then due. And from English v. Key, 39 Ala. 117, from which, in substance, the foregoing statements of law are taken, we quote: "Rent is incident to the 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 the rent falling due thereafter. The holder of the reversion" — appellant in this case — "may indeed, sever the rent from the reversion; but, unless it is specially reserved, the rent follows the reversion as a part of the realty." For the rest, we cite Tubb v. Fort, 58 Ala. 277, to the proposition that whoever is entitled to the reversion when the rent falls due is also entitled to the rent unless it has been previously severed, and the purchaser at mortgage foreclosure sale is entitled to the rent afterwards falling due as against the assignee of the tenant's obligation to pay whose interest was acquired in subordination to the previous mortgage. In other words, the mortgagor could not, as against the purchaser at the foreclosure sale under a mortgage previously executed, effectuate a severance of rents by an assignment thereof before foreclosure if the assignee is charged with notice of the mortgage, and that it might be foreclosed before the maturity of the rent. The Bank of Moundville was such an assignee and it is responsible to appellant purchaser at foreclosure sale before the rents become due. See, also, Coffey v. Hunt, 75 Ala. 238, and Kirkpatrick v. Boyd, 90 Ala. 449, 7 So. 913.
The two cases last cited, along with English v. Key, supra, all written by competent judges, settle the equities of this case and the rights of the parties. No just distinction can be drawn between them and the case at bar. This is peculiarly true of Coffey v. Hunt, supra, where, in circumstances identical in every material respect, the court denominated the estate acquired by the foreclosure of a mortgage as the reversion and of the tenant's liability to the purchaser at foreclosure as a liability for rent. And in Mortgage Co. v. Turner, 95 Ala. 277,11 So. 211, 212, the court held this language: "But the right to recover rents [italics supplied] in such cases [that is, after foreclosure] does not grow out of the relation of landlord and tenant. It is the right to recover for the use and occupation of his premises, the value of which is fixed by the rental agreement, where [as in this case] he gives notice that he will claim the rents." We indulge the foregoing quotation for the sole purpose of showing that the courts would not heretofore have considered the fact that plaintiff was suing for rent, eo nomine, as a sufficient reason for denying relief to him in cases in which the tenant in possession holds over after a reversion of the title, and for the further reason that the opinion on the first appeal and the dissent now proceed upon the proposition that plaintiff was not entitled to recover because he claimed rents, though he might have recovered had he claimed the amount of the rent as for use and occupation. We quote further from Mortgage Co. v. Turner: "The mortgagor" — the court intended as we think to write "mortgagee" — "may claim the rents after the law day, and after notice may recover the rent which accrues thereafter, but the right to recover rents in such cases does not grow out of the relation of landlord and tenant. It is the right to recover for the use and occupation of his premises, the value of which is fixed by the rental agreement, where he gives notice that he will claim the rents." And, further: "So contracts relative to the mortgaged property subsequent to the mortgage by every principle of law are subordinate to it and the mortgagee's right to entry." The discussion need not be prolonged. What has been here written in respect of Mortgage Co. v. Turner, supra, has been written with a view to showing that, according to that case, the conclusion reached in the present case is, not only sound as an abstract principle, but is sound as affecting the administration of justice in the concrete case.
It results that the writ must be granted to the end that a judgment be rendered by the Court of Appeals in agreement herewith, and, *Page 167 indeed, we think it may be inferred from the opinion of that court, such would have been the judgment of that court had it not been under constraint by the opinion of this court on the first appeal.
Writ awarded.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.