41 So. 667 | Ala. | 1906
— This was originally an action before a justice of the peace, brought by the appellants against the appellees for forcible entry and detainer and' unlawful detainer. The defendants (appellees) filed their petition in accordance with section .2147 of the code of 1896, and the case was removed to the circuit court.
The first assignment of error insisted upon is that the court erred in overruling a motion made in the cir
There ivas no error in the refusal of the court to allow the question as to what the witness Broadus said, as there is no pretense that he had anything to do with the entry, but came' there after the parties had entered. It will he observed that the issues in this case áre not exactly the same as if the action was tried regularly under section 2126 of the code of 1896, for that section defines what forcible entry and detainer is, and includes therein, not only the forcible entry, but also a peaceable entry followed- by an unlawful refusal by force or threats, while section 2149 states that the plaintiff must recover on the strength of his legal title, unless he can prove that the defendant entered “under some contract or agreement between the plaintiff, or those under whom he claimed, or by some use of force.” So that the only issue is as to the manner of his entry, and not as to how he held possession after he had entered.
As to charge 7, the plaintiffs, not having called attention to the “inadvertence,” cannot complain of it now.—Barnewall v. Murrell, 108 Ala. 366, 18 South. 831.
The several assignments of error based on the admission of testimony under the ejectment alternative of the case are shown by what has been said in the first paragraph of this opinion to be without merit. There was no error in the overruling of plaintiff’s objection to the question to the witness Cornelius Fowler as to what the circumstances were under which the deed was made. There was no motion to exclude the answer to the question. There was no error in sustaining the objection by defendants to the introduction of a conversation between the witness Mrs. Daisev Norris and the Malones, as such conversation with a third party could have no legal bearing on the issues in this case. The ground of objection by'the defendant to the question to the witness Irene Prichard: “Did you -not institute a suit for
Charges 3 and 2, requested by the plaintiffs, were properly refused. Said charges present no question involved in either of the issues presented in this case, to-wit: First, whether the defendants entered upon the possession of the plaintiffs by force; second, as to which party had the legal title to the land, or was entitled to the possession thereof.
The court properly refused to give the general charge requested by the plaintiffs. As there was conflict in the evidence and upon the facts, as detailed by the witness ,this court cannot say that there was an entry by force; Nor can we. say as a matter of law that the defendants entered under or by collusion with the. tenant, as some of the evidence tends to show that they did not enter under or by collusion with the tenant, but simply remained in the house after the tenant left.
Charge 4, requested by the plaintiffs, was properly refused. The mere opening of a gate on entering premises is not such force as in law would constitute a forcible entry.—19 Cyc. 1334, 13.36; 33 Am. & Eng. Ency. Law, 76.1. The definition of forcible entry and detainer given in section 2126 of the code of 3896 requires more than a mere opening of a door to constitute that offense, and under section 2149 the distinction was drawn between a peaceable entry and an entry by force, and the burden is on the plaintiff to show that the defendant entered by force. The word “force” carries with it necessarily the idea of violence exercised, and it may include a putting-in fear by threats; but it certainly cannot include a
Charge 5, requested hy plaintiff, ivas abstract, as there was no evidence that any part of the consideration of the deed was the future support of John Fowler. Consequently the court cannot he placed in error for refusing to give it.
There ivas no error in the refusal of the court to give cliaige 6, requested by the plaintiff. This is not a suit to set aside a deed as fraudulent, and, even.if the principle invoked by the appellant was applicable, there is no hypothesis of knowledge of the fraud. If the intention of the framer of the charge was to claim that the plaintiffs had acquired title by ten years’ adverse possession, the facts necessary to constitute adverse possession should have been stated in the hypothesis. If the defendants merely remained there as the guests, either invited or permissive, of the Malones, and only took possession the next morning after the tenancy had expired and the tenants moved out, then the intrusion was on.the possession of plaintiffs.
Charge A and B, given at the request of the defendant, were properly given. The statute of limitations could not run against Jolin Fowler during the period of his disability.—Taylor v. Forsey, 56 Ala. 426, 438. The decisions referred to by counsel for appellant, to the effect that a. void deed may furnish color of title, have no reference to the question of capacity of the person against whom the adverse possession is claimed to run. The case of Riggs v. Fuller, 54 Ala. 141, does not by any means assert the doctrine that the statute can run against the party who is under the disability, so that the period may expire during the disability, but only that the statute is not suspended during the disability, so as to give him the entire ten years after it ceases, but that only “three years shall remain to the person laboring under them after their removal.”—Page 148 of 54 Ala. In ether words, he is protected during the disability and for three years thereafter. Even if it be admitted that the effect of the statute would be to give to the person who succeeds to the interest of the infant or
The judgment-of the court is affirmed.