1. We think it very clear, that the court' erred in allowing the appellee to read in evidence to the jury the record of the judgment in the case of Waddle against *714the appellant, and the deed from the sheriff to him for the premises when they were sold under that judgment, against the objection of the appellee. The 2859th section of the Code expressly declares, that “.the estate, or merits of the title, cannot be inquired into on the trial of any complaint” of the kind here presented ; and it is too clear to admit of ai’gument, that the admission of the proof objected to tended, necessarily and inevitably, to involve an examination of the merits of the title under which the appellant claims the possession. This was not the question before the jury ; but the issue submitted to them, and which alone they were required to try, was, whether the appellee was in possession of the premises under such circumstances as would constitute his holding them, after demand in writing by the appellant, an unlawful detainer.
It is said, however, that this evidence was offered to show that the possession of Hunter was lawful; but the most casual examination will show that this could not be done, by this proof, without inquiring whether the estate of Dumas had not been determined by the sale and conveyance of the premises by the sheriff to another. It has been said, and repeated by this court, that the statute against forcible entries and unlawful detainers was intended to protect possession ; and the purchaser of the title at sheriff’s sale has no more right to enter without the consent of him who is in possession, than' any other person with a lawful title. In the present case, the tenant in possession voluntarily gave it up to the purchaser at the sheriff’s sale; but this, we apprehend, did not invest the latter with a lawful right to hold against the landlord.—Clark v. Stringfellow, 4 Ala. R. 353 ; Lecatt v. Stewart, 2 Stewart 474.
We have, on this branch of the case, adopted, in a great degree, the language of Mr. Justice Goldthwaite, in Clark v. Stringfellow, supra, which, on this point, was almost identical with the case at bar.
It may be said, however, that the statute under which the former case was decided, and the section of the Code which defines an unlawful detainer, are essentially variant. In respect to possessions obtained and held under circumstances such as mark the present case, there is no essential difference, *715if, indeed, any in fact exists. The former statute (Olayas Digest 251, § 5) enumerates with greater particularity what acts of holding over shall constitute an unlawful ■ detainer and who might be guilty of it, than does section 2852 of the Code ; but the latter, when taken in connection with rules, of the common law, governing tenancies, is as full as the, former statute. By the terms of the act cited from Clay’s -Digest it is provided, that one collusively obtaining possession from, the tenant who is in under contract with the landlord, and holding over after the expiration of the term for which the premises are let, and who refuses to surrender the possession to the landlord, after lawful demand made, shall be guilty of an unlawful detainer. Section 2852 of the Code defines an unlawful detainer to be, “ 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.”
We apprehend it • will scarcely be contended, that if the tenant should under-let the premises to a third person, for an unexpired portion of his term, and the sub-tenant should hold over under such circumstances as would have made the original .tenant guilty of unlawful detainer, he (the sub-tenant) would be guiltless. In respect to the terms of possession, the sub-tenant would be placed in the same situation with him from whom he derived his possession, and the landlord, is entitled to the same remedies against him, to recover it if it is unlawfully withheld. Indeed, the duties of the sub-tenant to surrender the possession to the landlord, at the expiration of the term, are the same which the law attaches to the tenant himself, and so, also, are the landlord’s remedies to recover it when withheld.
In the present case, it is shown that Dnina’s rented the premises in dispute to Neighbours for the years 1850-51, Dumas himself having possessed them during the years 1848 and 1849 ; that in October, 1851, Neighbours, while tenant of Dumas, put Waddle in possession, and he (Waddle), in March 1852, after the expiration of the term of Neighbours, under whom he entered, put the defendant' into possession, who, on demand lawfully made, refused to deliver the po.sses*716sion tb the landlord. At the time Hunter obtained the possession frbm Waddle, the latter was. the tenant at will of Dumas ; and the former, by thus obtaining the possession, occupies the same relation ; and the fact that he held the sheriff’s deed to the premises dobs not, of itself, change that relation.
As the charge of the court is general, and based upon the testimony thus illegally admitted, it is erroneous.
Let thb judgment be i-eversed, and the cause remanded.