
    
      Ex parte Webb.
    
      Petition for Mandamus.
    
    1. Selma, charter of; certain provisions construed. — The provisions of the charter of the city of Selma, declaring the person m possession of property sold for city taxes, who refuses to deliver it to the purchaser, “shall be guilty of unlawful detainer, and the purchaser may institute suit before any justice of the peace, to recover possession,” if valid, about which no opinion is expressed, are not to be construed as subjecting the proceeding, thus authorized, to the rules which regulate the action of unlawful detainer, between landlord and tenant, or where only the right of possesssion is involved: the proceeding authorized by the charter, partakes more of the nature of ejectment, or the statutory real action, than of unlawful detainer, and is governed by the general rules applicable to the former class of actions; and there must of necessity be an inquiry into the merits of the title ; and where judgment is rendered in the justice’s court against the tenant, the landlord may intervene and appeal.
    2. Same; what not cause for dismissing appeal_Where judgment is rendered against the tenant and the landlord appeals to the Circuit Court, the appeal will not be dismissed, or the canse stricken from the docket, because the tenant did not appeal; or because a boDd, in compliance with the statute, was not given, if the appellant is able and willing to give a proper bond.
    This was a petition by Webb for mandamus, to be directed to tbe Hon. Geobge H. Csaig, presiding over tlie Circuit Court of Dallas, to compel him to strike a certain cause from tbe docket; a motion to that effect having been made before him and overruled.
    Tbe facts shown by tbe petition are as follows: Webb purchased a certain lot of land in tbe city of Selma, at a city tax sale; paid tbe amount of bis bid and received a certificate of purchase, in accordance with the provisions of tbe charter of that city. Tbe premises, consisting of a brick store and lot on wbicb it was built, were then in possession and occupancy of Carlisle, Jones & Co. Webb demanded possession, and that they should pay him rent, and both of these demands having been refused, brought unlawful de-tainer against tbem, before a justice of tbe peace, to recover possession, and damages for tbe detention. Tbe defendants not appearing, Webb offered testimony before tbe justice of tbe peace, wbo rendered judgment for recovery of possession, and sixty dollars damages. After this, Mary Brad-field, J. W. Bush, L. H. Pitts and M. L. Ernst, filed in tbe justice’s court, a written acknowledgment that they were security for costs on appeal, in the cause to the Circuit Court from said judgment.”
    At the same time the security for costs of appeal was given, the same persons filed with the justice a bond, signed by them, and in the penalty of six hundred dollars, payable to Webb, “upon condition, that if the above bound Mary Bradfield shall prosecute to effect an appeal by her taken this day to the next term of the Circuit Court from a judgment rendered, against Carlisle, Jones & Co., her tenants in possession, in favor of Norman Webb on unlawful detainer of a certain” lot, “now occupied by said Carlisle & Jones as such tenants, by Abner Jones, justice of the peace, in and for said county. Now, as above stated, if said Mary Brad-field shall prosecute such appeal to effect, and pay all such rents as may accrue on said property, at an annual rent of three hundred dollars per annum, as may accrue during the pendency of said appeal, if she shall be held liable therefor in said Circuit Court, then this obligation to be null and void, otherwise to remain in full force and effect.” No approval of the bond or security for costs was indorsed thereon in writing by the justice, but he treated the case as having been properly appealed, and certified his proceedings, and sent up the original papers to the Circuit Court.
    Webb made a motion in the Circuit Court to strike the cause from the docket, and to dismiss the appeal, and for an order of 'procedendo to the justice, on the grounds : 1st, that Carlisle, Jones & Co. did not take the appeal, but it was attempted to be taken by one not a party to the suit; 2d, there was no appeal bond given by the defendants; and 3d, that the undertaking on file was not conditioned according to law, and no appeal should have certified to the Circuit Court. _ It was shown on the hearing of the motion, that Carlisle, Jones & Go. were tenants of Mrs. Bradfield; that they refused to take an appeal, but consented that Mrs. Bradfield might take an appeal in their names, provided they were protected against cost and expenses; and under these circumstances Mrs. Bradfield caused the execution and filing of the security for costs and bond above referred to. The court overruled the motion.
    W. C. Waed, for petitioner.
    In appeals from judgments of justices on unlawful detainer, the unsuccessful party must execute an appeal bond, payable to the other party. — Code, § 3711. The appeal bond must be executed by the party praying the appeal. — Code, § 3710. In the Circuit Court, 2 the plaintiff recovers, judgment must be against appellant and 
      
      Ms sureties for costs, and against appellant and Ms sureties on tbe supersedeas bond for rents. — Code, §§ 3712-3. In ibis case tbe defendants took no appeal, and gave no supersedeas bond, and no judgment can be rendered against them and tbe parties as sureties, who gave tbe undertaking and bond set out in tbe recoi%, because they do not sustain tbe relation of principal and sureties; and tbe judgment rendered against tbe sureties in such cases, can only be rendered under tbe statute, and tbe bonds must comply with tbe statute. — 4 Ala. 315. This is not tbe case of a defective bond, where an appeal has been taken. There is no appeal here. Mrs. Bradfield is a stranger to tbe judgment, and can not meddle with it. — May v. Watson, 6 Ala. 133; May v. Courtenay, Tenant & Co. 43 Ala. 617. An appeal - by a stranger will not give jurisdiction. — 20 Howard, 218. Mandamus is tbe proper remedy. — Moses on Mandamus, 19; Ex parte Cole, 28 Ala. 50; Ex parte Morgan, 30 Ala. 51.
    Lee & Bush, contra.
    
    Mrs. Bradfield is not a stranger to tbe suit. She bad a right to appear and defend tbe possession of her tenants. — Code, § 2955 ; 4 Ala. 353'; Taylor on Landlord and Tenant, § 173. Besides this, tbe court having jurisdiction by tbe appeal, its refusal to strike tbe cause from tbe docket can not be revised or corrected by mandamus. — 4 Otto, 418; Ex parte Elston, 25 Ala. 73; Ex parte Putnam, 30 Ala. 593.
   BBICKELL, C. J.

Tbe purchaser of lands sold for taxes, has no other remedy at common law to recover possession, than an action of ejectment. — Blackwell on Tax Titles, 576; Cooley on Taxation, 371. Tbe charter of tbe city of Selma declares, that in tbe event of tbe failure or refusal of tbe person in possession, to surrender to a purchaser at a sale for tbe payment of city taxes, such person “shall be guilty of an unlawful detainer, and the purchaser may institute suit before any justice of tbe peace in tbe city of Selma, for tbe recovery of tbe possession of said premises, and damages for tbe detention thereof. From the judgment of such justice, an appeal may be taken to tbe Circuit Court of Dallas county, as in other cases of unlawful detainer.” — Pampb. Acts, 1874-5, 375, § 47. We do not now propose to express any opinion as to tbe validity of this enactment. Tbe necessities of tbe present case are satisfied, when we say that it must not be construed as subjecting tbe proceeding it authorizes to the same rules which regulate and control tbe action of unlawful detainer between landlord and tenant, or when simply tbe right of possession is involved. Then, possession is a necessary element of tbe plaintiff’s case; and tbe defendant, having obtained possession from tbe plaintiff, must, after tbe termination of bis possessory interest, bave refused to surrender. — Devine v. Brown, 35 Ala. 596. In such cases there is and can be no necessity for an examination into tbe estate, or the merits of tbe title:

Tbe proceeding by tbe purchaser at tbe tax sale, is founded on tbe theory that be has acquired title by bis purchase, and the title draws to it tbe possession. There is no prior possession on which be 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 tbe party proceeded against is deprived of all right of defense, or bis right of defense is narrowed and circumscribed so that generally it would be valueless, there must, of necessity, be an inquiry into tbe estate, or merits of tbe title. Tbe proceeding tbe statute authorizes, has, necessarily, more of tbe elements, and bears a greater analogy to an action of ejectment, or tbe statutory real action, than to an action of unlawful detainer proper. A legislative declaration that tbe party withholding tbe possession is guilty of an unlawful detainer, and that suit for tbe recovery of possession, and damages for tbe detention, may be commenced before a justice of tbe peace, cannot be so construed as in effect to disseize a man of bis freehold, and convert bis estate into a mere right of action.

Tbe statute (Code of 1876, § 2955) requires that when a real action is against a tenant, tbe landlord must, on motion, be made a party defendant. Whether this statute is not a mere affirmance of tbe common law, or confers on tbe landlord a new right, is not important. — Arent v. Read, 2 Port. 480; Lawson v. Orear, 4 Ala. 156; Tyler on Ejectment, 442, et seq. Tbe existence of such a rule is indispensable to the protection of tbe party really interested to defend tbe action against tbe negligence or the fraud or collusion of tbe tenant in possession. The statute in promotion of this, its manifest purpose, has been liberally construed. The technical relation of landlord and tenant has not been deemed indispensable to its operation. Whoever claims title, consistent with tbe possession of tbe occupier, and as against him, has an immediate right of entry, may loe allowed to defend as landlord. — Thompson v. Ives, 11 Ala. 239; Falkner v. Jones, 12 Ala. 165. An extension of tbe statute to this proceeding, which, by whatever name it may be called, is in fact an action against the tenant in possession, in which tbe plaintiff can recover only on tbe strength of bis title, and in which tbe title is, of necessity, involved, is not unwarranted. It is necessary for tbe protection of the landlord against tbe unwillingness of tbe tenant to engage in litigation, or bis negligence or fraud. Tbe statute, in very general terms, applies tbe provisions of tbe Code, in tbe regulation of suits in tbe Circuit Court, to suits before-justices. — Code of 1876, § 3662. In cases of tbis kind, there being no statutory provision preventing, tbe statute allowing tbe landlord to intervene can well be regarded as applicable, not only to suits in tbe Circuit Court, but to analogous suits before justices of tbe peace. — Gould v. Meyer, 36 Ala. 565. Of course it could have no application to tbe ordinary suits of unlawful de-tainer, or forcible entry and detainer.

Tbe landlord of the tenants in possession had tbe right to intervene and prosecute an appeal from tbe judgment of tbe justice of tbe peace. She is not a stranger, intermeddling in a suit in which she is without interest. The bonds executed by her, may not be statutory bonds, on which judgments may be rendered against her and her sureties summarily. They are valid common law obligations, and if tbe petitioner deems it necessary for bis protection, on a proper application to tbe Circuit Court, tbe landlord may be formally substituted as tbe party defendant, and tbe party appellant, and required to execute sufficient statutory bonds. It is tbe mandate of tbe statute, which but follows tbe former decisions of tbis court, that no appeal or c&Hiorari for tbe revision of judgments of justices of tbe peace must be dismissed for any defect in tbe bond, if tbe party is willing to execute a sufficient bond or undertaking. — Code of 1876, § 3126.

Tbe Circuit Court properly refused tbe motion of tbe petitioner to strike tbe cause from tbe docket, and tbe application for mandamus is denied at bis costs.  