79 So. 192 | Ala. | 1918
The suit is for use and occupation, where the defendant is alleged to have entered into possession of the land unlawfully.
Under the Code of 1907, § 4753, it has been held that a plaintiff cannot recover for use and occupation, unless the defendant entered into the possession unlawfully under such circumstances as that he could not deny the plaintiff's right of possession. The term "unlawfully," as used in subsection 4 of section 4753 of the Code, is held to indicate "a possession acquired by an intrusion without a bona fide claim of title upon the plaintiff's actual possession." The harmony of the law on the subject, preserved by the construction given the statute, demands that, to support an action for use and occupation, there shall be a contract, express or implied, "either creating the technical relation of landlord and tenant or bringing the parties into a relation imputing like rights and duties." Crabtree v. Street,
The court gave the affirmative charge for the plaintiff, notwithstanding the evidence was in conflict as to plaintiff's "peaceable actual possession," averred to have been broken by defendant's tortious entry under such circumstances as that the latter could not be heard (in a suit for use and occupation) to deny plaintiff's better right to the possession. A jury question was thus presented; the affirmative instruction should not have been given on request, much less by the court ex mero motu, as it was done in that part of the oral charge to which exception was duly reserved.
The credibility of parol evidence is for the jury. Shipp v. Shelton,
A sufficient predicate should be laid for the introduction of secondary evidence. Stuart v. Mitchum,
It will suffice for the purposes of another trial, to say that there was no error in the rulings on the pleadings.
The judgment of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.