#### Windham *v.*Atkins.

*Claim Suit.*

(Decided December 4, 1913.

63 South. 1022.)

*Judgment; Conclusiveness; Matters Concluded.*— While an action of ejectment was pending, both plaintiff and defendant in said ejectment suit rented the land to the same tenant. Plaintiff recovered thereafter a considerable sum as damages for the detention of the land up to a date subsequent to the rental term. Held, that plaintiff was conclusively estopped by such judgment, as against defendant and the assignee of his rent note, to deny defendant’s possession of the land or to assert that the tenant was his tenant. Hence,' he could not,, as against such party, claim a lien on cotton raised on such land.

Appeal from Lamar Circuit Court.

Heard before Hon. Bernard Harwood.

Action by R. V. Windham against O. H. Fields, in which W. E. Atkins filed claim to a bale of cotton at*104tached. From a judgment *for*claimant, plaintiff appeals.

Reversed and remanded.

The appeal is from a judgment of the circuit court in a claim suit begun before a justice of the peace, and under the issues submitted the question was: Which of the parties was entitled to enforce a landlord’s lien upon a bale of cotton raised upon a certain piece of land; each having a rent claim from the same tenant for the same year? On April 8, 1907, the claimant Atkins filed his suit in ejectment against Moody Bros, and others for the recovery of the land on which the cotton was raised and $50 for its detention. In that suit there was final judgment on September 18, 1911, for the plaintiff Atkins, not only for the land, but also for $150 as damages for the detention thereof. In the meantime, pending the ejectment suit, Atkins in December, 1909, rented the land to O. H. Fields for the year 1910, the year in question. In February, 1910, Moody Bros, also rented the land to Fields and received from him a rent note for $50 for the year 1910, which was afterwards assigned to R. Y. Windham, the plaintiff in this attachment suit. During the year 1909 Fields had rented the land from Moody Bros, and was in possession in December, 1909. The claimant Atkins testified that, after he brought the ejectment suit, the sheriff put him in possession of the land in the year 1908, and also that the sheriff put him in possession when he recovered judgment in 1911.

Walter. Nesmitti, for appellant.

Fields was bound by his rent note he gave, and could not avoid it by showing that he was the tenant of someone *else.*— Davis *v. Rice,*88 Ala. 388; *Nierosi v.*Phillips, 91 Ala. 306. Appellee was estopped from claiming rent as he was concluded as to possession by the judgment rendered in *105the ejectment *suit.*— Mervin *v. Parker,*18 Ala. 241; *Strmiss v. Mertief,*64 Ala. 300; *Tankersly v. Pettis,*71 Ala. 179; *Qilreath v. Jones,*66 Ala. 132; *Q-lasserv. Meyrovitz,*119 Ala. *Wood v. Wood,*134 Ala. 557.

J. O. Milner, for appellee. No brief reached the Reporter.

SOMERVILLE, J.

— The records introduced in evidence show incontestably that the claimant Atkins recovered a considerable sum as damages for the detention of the land up to the date of the judgment in ejectment. The period covered by these damages included the period for which Atkins claims rent as the landlord of Fields, who was in possession of the land nominally as the tenant both of Atkins and of Moody Bros.

It is clear that Atkins is not entitled to collect rent from a tenant of Moody Bros, in addition to the damages in lieu of rents which he has already recovered against them for the same period. This results from the conclusive estoppel of the judgment. On the theory that Moody Bros, were in the possession and had withheld possession from him, Atkins has acquired a judgment against them for compensation for the use of his land. He cannot now repudiate that affirmation and deny that Moody Bros, had a possession hostile to him.jself. Nor can he, in the face of that conclusively conceded possession, establish himself as the lawful landlord of a tenant who during that period had rented the premises from them, and this whether the controversy now be with Moody Bros, or with their privy in interest, Atkins.

It results that the appellant, as plaintiff in attachment, was entitled to the general affirmative charge as *106against the claimant Atkins,, and tbe trial court erred in refusing to give it as required.

The judgment will be reversed, and the cause remanded.

Reversed and remanded.

McClellan, Mayfield, and Sayre, JJ.', concur.