7 So. 2d 33 | Ala. | 1942
Lead Opinion
The parties seem to agree on the questions of law involved on this appeal, without passing on each assignment of error.
There are two counts in the complaint. One is for trespass quare clausum fregit, and the other is for use and occupation of the same land. Some of the pleas to which demurrer was sustained set up the defense that defendant entered upon the premises under a foreclosure deed, whereby a mortgage from plaintiff's predecessor in ownership to defendant was foreclosed and continued in possession throughout the period laid in the complaint as a bona fide holder of the land under said foreclosure.
No one questions the principle that to sustain an action for trespass to land plaintiff's possession must have been violated by a disseizin, not consented to by plaintiff. Buck v. Louisville N. R. R. Co.,
This action cannot be made a substitute to try the title to land by one out of possession. But plaintiff's title may sometimes be material to show his constructive possession (after a re-entry). Griffin v. Bozeman,
The count for use and occupation may be made available by an amendment to the Code, when defendant has acquired the land unlawfully. Code of 1940, Title 31, section 46(4); Code of 1923, section 8820 (4). But this Court has held that this amendment did not confer a right of action when the defendant entered upon the land under bona fide claim of title. Crabtree v. Street,
So that the defense that the entry was under bona fide claim of ownership and not by force actual or constructive is available to such a count the same as to one in trespass to the freehold.
The parties bring into the argument matter not shown by the pleadings (or evidence either as to that matter), upon the assumption that we will take judicial notice of them. They refer to former litigation between them as to this land, which came to this Court and is reported in
Those facts are not adequately set out in the instant case, and some of the material features do not appear in the record in this Court of such former suit. It does not appear from that record that plaintiff was put in possession under that decree so affirmed, or has in any other way entered into possession of the land, and that defendant is not still in its possession.
The pleadings and issues are not such as to invoke the principle that either the trial court or this Court on review should take judicial notice of an order made in the former suit equivalent to an allegation of the fact that this plaintiff was put into possession by such court and when it may have occurred. Cogburn v. Callier,
So as the record stands with no allegation of re-entry by plaintiff, the trial court sustained demurrer to pleas setting up the claim that defendant entered peaceably into the adverse possession of the land under color and claim of ownership, and so held it during the period of the alleged trespass. This we think was an erroneous ruling and for it the judgment must be reversed, since there is no claim that it was not prejudicial, if erroneous.
From the argument of counsel, it is probable that in ruling on the demurrers to the pleas the court considered the result of that litigation, and from it may have found as is stated in briefs that plaintiff was put into possession of the eighty acres here in question by order of that court, and then filed this action at law for the use of the land and damage to it while in a possession which that court determined was wrongful, and that this case is not burdened by a trial of title in such an action, since the title was tried and determined and plaintiff put in possession before filing this action. For the purpose of another trial, and since both parties have argued that as the question, we will treat it.
The question is an old one. At common law, it was well settled that trespass will not lie to recover rents or mesne profits until the owner, who was disseized, had recovered possession in ejectment or in some other manner. Then he could maintain a suit for the recovery of mesne profits, which could not then be recovered in the ejectment suit. But by an early statute in this State, plaintiff could recover rents in his ejectment suit. Then it was held that he could not sue for them after he regained possession in such a suit since he could have recovered them in it. Therefore that plaintiff could only recover the mesne profits in a suit begun after he had regained possession in some manner other than by a suit in which such recovery was available. Fry v. Branch Bank,
The question was considered again with respect to injuries for waste not for use and occupation. It was held that since at that time such injuries could not be recovered in ejectment, an action would lie for them after a recovery of the land by such suit. Henry v. Davis,
But, as pointed out in the latter case, the statute has since been amended so as to allow recovery of such injuries in the ejectment suit to be computed up to the time of the verdict. Code of 1923, section 7453; Code of 1940, Title 7, section 938.
But to sustain an action of trespass to realty by another, there must have been an entry on land in the possession of plaintiff, actually or constructively, without express or implied authority, Foust v. Kinney,
In recognition of this principle and that to sustain trespass quare clausum fregit, an ouster is necessary, an action on the case (in the nature of waste, 67 Corpus *492
Juris 624, note 38) was used in Quinn v. Pratt Consolidated Coal Co.,
The suit in equity to which the parties in the instant case have referred by which plaintiff secured a cancellation of the mortgage on the eighty acres in question was as much an equitable ejectment as that mentioned in the Quinn case, supra. In an equitable suit to vacate a mortgage, and recover possession of the land because the mortgage has been fully paid or is void as not properly executed to convey the homestead (as there claimed) complainant is pursuing a course no different in its inherent nature from an action at law in ejectment. In either, upon recovery he could have his damages for waste or for use and occupation. Code of 1940, Title 7, section 938; Dewberry v. Bank of Standing Rock,
Neither a count in trespass quare clausum fregit nor in case, nor for use and occupation nor in any other form is available for the recovery of damages for waste or for use and occupation after plaintiff has recovered possession of the land in a suit in which a recovery for such damages is available, whether they were claimed or not. And an action for trespass quare clausum fregit will not lie unless plaintiff's possession was intruded upon by defendant without his consent, even though consent may have been given under a mistake of facts, or procured by fraud, or unless he entered under a license for some particular purpose and went beyond that purpose. Snedecor v. Pope, supra. Nor will an action for use and occupation lie when defendant entered upon the land under bona fide claim of title.
For the error in holding that the defense set up was not well founded, the judgment must be reversed.
Reversed and remanded.
GARDNER, C. J., BOULDIN, and LIVINGSTON, JJ., concur.
Addendum
It is insisted that we were in error in reversing this case because demurrer was sustained to certain pleas, in that the same defense was available under plea No. 7. But that plea was directed to the claim for "use and occupation," not to that of trespass; and there was no other plea to the claim of trespass under which the defense was available.
It is also insisted that we were mistaken in saying that it does not appear from the record that plaintiff had acquired possession of the land before suit was brought. The evidence in the record is not clear to this effect, but it is such as that an inference may be so drawn by the jury. But that was not given as a material respect in which error was made to appear in the record.
For assuming that plaintiff had re-entered, either by judgment of a court or by some other means, he cannot recover in trespass quare clausum fregit, or for use and occupation, for acts done by defendant while in the actual possession acquired peaceably under claim of ownership in good faith. And he cannot recover in trespass on the case or in other form of action for damages or mesne profits which were recoverable in the suit by him in which he secured that possession. That is the status of the parties as argued by counsel.
But the judgment is reversed for sustaining demurrer to pleas setting up the possession of defendant under claim of ownership adversely and in good faith during *493 the time of which plaintiff complains, and in substance that there was no ouster of plaintiff.
Application for rehearing is overruled.
GARDNER, C. J., BOULDIN, and LIVINGSTON, JJ., concur.
