Bank at Decatur v. Hodges. 1841. Both protests were excluded, and the defendant afterwards introduced the deposition of the notary public, stating the fact of presentation for acceptance, of the particular bill sued on, its protest, and the manner by which notice was sent to the drawers and indorsers, and stating also the protest for non-payment, at the maturity of the bill. The entire evidence stated was rejected by the court. The plaintiff excepted, and now assins the rejection as error. D. C. HUMPHREYS, for the plaintiff in error. GOLDTHWAITE, J.-1. The mistake in the protest of the bill for its non-acceptance is not in the description of it, but is in the certificate that notice of the non-acceptance was sent by mail to Chomason, instead of Thomason, if in point of fact the name is not set out precisely the same in the certificate as it is in the copy of the bill. The protest is a matter entirely independent of the certificate, and would be good if the latter was omitted. There was then, no reason to exclude the protest on this ground, and even if the mistake was in the description of the bill itself, the case of Moorman v. The Bank, 3 Porter, 353, seems to hold such a variance immaterial when the suit is against an indorser prior in liability to the one whose name is mistaken. 2. The mistake in the protest for non-payment, is in describing the date as the 26th instead of the 28th of January. We are not aware that parol proof is admissible to show a mistake in the protest. That is a formal document, essential to maintain the action against the drawers or indorsers of a foreign bill, and it is said should correspond verbatim in description with the bill. [Story on Bills, § 276.] But the drawing up or extending of the protest is the mere official act of the notary, which he may peform after the noting is actually made. He, upon presenting the bill, usually notes upon its face, or margin, the fact of demand, &c. and afterwards extends it in proper form. [Chalus v. Bell, 4 Esp. 48; Chitty on Bills, 499.] When, therefore, a mistake is make in extending the nota Smith v. Taylor. rial act, he may at any time afterwards correct it. It is not the extension of the protest, but the fact that it is so protested, which is the essential matter. In reference to the protest for non-payment the court correctly excluded it, for the variance in the bill there described from that in suit. 3. The deposition of the notary was improperly rejected, because his evidence was proper to establish the sending of notice to the parties liable on the bill in default of non-acceptance or non-payment. It is said that the fact of protest cannot be proved independent of the notarial act, but as to this latter point we express no opinion. [Story on Bills, § 276.] Judgment reversed and remanded. SMITH v. TAYLOR. 1. Two persons having a law suit about a tract of land, one wanting to rent it applied to both for that purpose, but both declined to exercise ownership over it. He then told them he should cultivate it, and would pay rent to whichever of the two was ascertained to be the owner. Held, that this promise inured to the owner of the land, and that the tenant could be garnisheed by a creditor of the owner, when that fact was ascertained. 2. Where the mortgage provided, that after default of payment the mortga gee might enter, the mortgagor is entitled to possession until such default; and if the land is rented, the tenant is liable to his landlord for the rent, after default, if he has not been notified by the mortgagee not to pay it over. 3. A set off cannot be made, unless the party offering it could have maintained an action upon it in his own name, against the other party. Error to the County Court of Lowndes. Smith v. Taylor. THE plaintiff in error was garnisheed by defendant in error, to say what he was indebted to John B. Lamkin, his judgment debtor. Judgment by default was taken against him, and upon a scire facias he appeared, and answered, denying that he was indebted to Lamkin; that he cultivated about fifty or sixty acres of land, once claimed by Lamkin, but that Lamkin had abandoned the same, previous to the garnishment. The plaintiff made affidavit, contesting the truth of the answer, and an issue was made up between them. Upon the trial of the issue, a bill of exceptions was taken, from which it appears, that to show title in Lamkin to the land, for which rent was claimed of the garnishee, for the years 1843 and 1844, the plaintiff offered in evidence the record of a suit in Chancery, in which Lamkin and others were complainants, and Reese and others defendants, and a certificate of affirmance of the Chancellor's decree, made by the Supreme Court, which suit was instituted to determine the title to the land in question. To the introduction of this evidence the garnishee objected, but the court overruled it, and the entire record was introduced in evidence. The plaintiff also read to the jury a mortgage, by Lamkin, to the Branch Bank at Montgomery, embracing the land in question, dated 1st March 1842. It was also proved, that about the month of November, 1842, Lamkin abandoned the land, and disavowed all claim to it; and there was no proof that he ever afterwards asserted claim to, or control over it. That the garnishee took possession in March, 1843, it then being without a tenant, and kept the possession the whole of that, and the succeeding year, and cultivated it. In the month of July, 1844, the Bank sold the land under the mortgage, as the property of Lamkin, to one Lewis; but there was no proof that the Bank asserted any title against Smith for rent, or that the Bank ever had, or demanded possession. The plaintiff read the deposition of the garnishee, taken in the Chancery suit above referred to, in which he statedI am in possession of the land; that seeing it abandoned, he applied to Lamkin and Reese, the persons he understood to be interested in it, to rent a part of it; that both refused to Smith v. Taylor. have any thing to do with it. He then informed them, he should cultivate a part of it, and was willing to pay a reasonable rent; that neither objecting, he planted and made a crop in the year 1843. The garnishee requested the court to charge the jury, that if they believed the evidence, Lamkin would have no right to recover rent from Smith, after the first note described in the mortgage fell due, if there was a failure to pay it; and also requested the court to charge, that after default in payment of the first note, the legal estate was in the Bank, and only an equity of redemption in Lamkin; which the court refused, but charged that the legal estate in said land, notwithstanding the mortgage and default, was in Lamkin, until the time of the sale by the Bank; and that if Smith cultivated the land, under a contract with Lamkin, either express or implied, he would be liable to him for rent, up to the time of the sale by the Bank, and for the residue of the term, if the rent was not reserved at the sale, the purchaser would be entitled to it. The defendant also requested the court to charge, that from the proof, they were not authorized to infer a contract, either express or implied, to pay rent to Lamkin, and that Smith could not be charged as a debtor to Lamkin, in this suit. The court refused to give the charge, and charged, that if there was no evidence of an express contract, the law would imply one, if Smith's entry on the land, and his possession was peaceable, and not against the consent of Lamkin. To all which the defendant excepted. The defendant also read in evidence, a note by Lamkin and Reese to him, and another as executors of B. C. Smith, for $925, dated 1st January, 1839, and due 21st December, after; upon which were credits for $868 25, and claimed the balance due as an off set, if the jury considered him bound for the rent. The court rejected the note, because the legal title was in defendant, and another, as executors, and defendant excepted. The jury found the defendant indebted to Lamkin $310, which was condemned to the satisfaction of the plaintiff's debt. All which is now assigned for error. Smith v. Taylor. GILCHRIST, for plaintiff in error. The land was mortgag ed by Lamkin, before Smith took possession of it, and there was no agreement for the possession of the land, or for rent before the forfeiture. The legal estate then vested immediately in the mortgagee, the Bank, it could bring ejectment and could recover rent from a tenant holding under a lease from the mortgagor, no attachment being necessary in this State. [4 Ala. Rep. 735; Clay's Dig. 156, § 29.] Even where it is stipulated that the mortgagor may remain in possession until forfeiture, after default, the mortgagee is entitled to all the rent which accrued after the making of the mortgage, that is then in arrear and unpaid. [6 Ala. Rep. 542.] The legal estate in the land being in the Bank, by the terms of the mortgage, and there being no contract for rent, Smith is alone liable to the Bank in an action of trespass. [1 S. & P. 294; 7 Ala. Rep. 315.] If the title of the land was in Lamkin, as the garnishee occupied by sufferance merely, the relation of landlord and tenant did not exist. If liable, it was in trespass, and a garnishment would not lie. T. J. JUDGE, contra, As authority is given in the mortgage, after default, "to enter upon the lands, sell, &c." the legal implication is, that the mortgagor was entitled to the possession until default. There was no proof, that the first note recited in the mortgage was not promptly paid at maturity; the court therefore correctly refused the charge, that Lamkin could not recover rent after the note fell due. There was no proof that the Bank ever claimed rent, or gave notice to the garnishee not to pay it over. The charge of the court therefore was strictly correct. contract to pay rent may be implied, see 7 Ala. Rep. 817. That a ORMOND, J.-It appears, that when the land, for the rent of which this garnishment was sued out, was abandoned by Lamkin, the garnishee took possession of it, and made an ineffectual effort to rent it of Lamkin, and of Reese, both of whom declined to exercise any control over it, there being a law suit between them in regard to it. He then informed them, he should cultivate it, and was willing to pay a rea |