Action of unlawful detainer, by the appellee, W. B. Folmar, as plaintiff, against tlie appellant, J. E. C. Patterson, as defendant. • The suit was against defendant and two others, but the 'complaint was amended by striking these other two out, leaving said Patterson as sole defendant.' The others surrendered 100 acres of the land, and defendant held the 100 acres sued for, and defended against plaintiff for the recovery of the same. The suit, by agreement between the parties, proceeded against Patterson alone, as to this 100 acres claimed by him.
Counsel for the appellant states in his brief here filed) that “there is but one question in this case: Did the court below inquire into the estate or merits of the title, which is prohibited by § 2135 of the Code of 1896, in actions of unlawful detainer?”
In the absence of all relationship of landlord and tenant, in actions for the recovery of-the possession of land, the merits of the title is necessarily involved. Evidence tending to show that relationship, therefore, and that the defendant held under the plaintiff as landlord, and not under a contract for the purchase of the land in question — where “the estate or merits of the title” might be involved — was competent. The contract offered and admitted in evidence against the objection of defendant was one by which, on the 23d of February, 1898, the plaintiff made an agreement of sale of the lands sued for to the defendant. The agreement contained the following provisions: “In case the said second party their heirs or assigns shall pay the above described sum of money punctually and at the time above limited (the 1st day of October, 1898), and 'likewise perform and complete each of the agreements and stipulations aforesaid,, strictly and literally, without any failure or default,, time being of the essence of this contract, then and thereupon the first party (the plaintiff), will make unto the said parties of the second part, their heirs and aligns,. *133upon the surrender of this contract, a deed conveying (to them) the title to said aforedeseribed lands and premises in fee simple.” But it was further provided, that in case of the failure of the parties of second part, to make payment and perform the conditions of the contract by the time limited — time being of the essence of the contract — then the contract should, from the date of such failure, foe null and void, and the rights of the parties of the second part thereunder, should utterly cease and determine, and the premises contracted (to be sold) should “revert to and revest in said party of the first part,” as fully as if the contract had never been made. Then followed this provision: “And it is hereby further covenanted'and agreed between the parties hereto, that immediately upon the failure to pay the note above described (the one given for the purchase money) the relation of landlord and tenant shall arise between the parties hereto, for the year, 1898, and the parties of the second part shall pay rent in the sum of two hundred dollars for occupying the premises for said year, 1898, such rent to be due and collectible immediately upon .such default.”
This, then, was an agreement for the sale of the land by plaintiff to defendant upon condition that defendant paid the agreed price by the 1st of October, 1898, and if he failed to do so, time being of the essence of the contract, it should cease and determine as an agreement of sale, and the parties were to stand to each other, as to that matter, as though no contract had ever been made. But, the contract went further and provided, that after such default, the relation of landlord and tenant should arise and exist between the parties as to the land for the year, 1898, and defendant should pay rent to plaintiff therefor for that year. Under this agreement, defendant was entitled to hold possession during and until the end of the year 1898, not under any right growing out of the forfeited and abrogated agreement of purchase, but as tenant of defendant. Under substantially the same contract, we recently held in Nelson v. Sanders, 123 Ala. 615, that Sanders was the tenant of Nelson, and liable to him for rents. — Collins v. Whigham, 58 Ala. 438. The introduction of this contract and the *134note given to plaintiff; by defendant for the land, and the proof in connection therewith, that the note and no part of it had been paid, was without error. This proof, without conflict showed the relation between the parties to be that of landlord and tenant, and involved no inquiry into the estate or merits of the title to the land. There is nothing in Brown v. Beatty, 76 Ala. 250, relied on by defendant, opposed to this conclusion. There, the possession begun in a lease, which contract was annulled bjr mutual agreement of the parties, and another one entered into between them in writing, by which the plaintiff agreed to sell and the defendant to purchase the premises, on terms agreed on and specified between them, and with which contract of purchase defendant failed to comply. It was held, that as there was under this contract no relation of landlord and tenant, the defendant acquired an equitable title, inquiry into which, prohibited by statute, was necessarily involved in the suit, and therefore unlawful detainer was not the proper remedy.
All the material allegations of the complaint in this case were proved without conflict in evidence, and there was no error in refusing the general charge for defendant, and in giving a like charge for plaintiff.
Affirmed.