| Ala. | Jan 15, 1849
The equity of the complainants’ bill, so far as it seeks to stay the commission of waste, is perhaps defensible. Lyon et al. v. Hunt et al. 11 Ala. R. 295. But in respect to the allegations that the complainants are bona fide purchasers from the patentee of the land in controversy, and hold his bond for a title, that the defendant is insolvent, and will cause them to be dispossessed under a judgment he has recovered against them, in a proceeding for a forcible entry and detainer, unless restrained by injunction, they furnish no warrant for the interposition of equity.
The proceeding for a forcible entry and detainer, is a civil remedy under our statutes, intended to restore a person to the possession of lands, which have been tortiously entered upon, and detained with force or strong hand. It is instituted by a complaint, addressed to a justice of the peace, and the trial is by jury. If a verdict is found for the defendant, judgment shall be rendered thereon, with costs; and the justice shall issue a writ of restitution, directed to the sheriff, “ to cause the complainant to be reseized, or repossessed,” also to make the costs, &c. After judgment, the proceedings may be removed before the circuit court of the county in which they have taken place. It is expressly declared, that the judgment shall be a bar to “ an action of trespass, or other action against the aggressor, or party offending.” Further, the estate or merits of the title, shall in no wise be inquired into on any complaint for a forcible entry and detainer, &c. Clay’s Dig. 250 to 253.
The object of these statutes was to afford a summary and cheap remedy for the party aggrieved, and to preserve the peace and harmony of society, by preventing persons who have conflicting titles to the same lands, from redressing their supposed grievances in defiance of the law. We have seen it is provided that the title shall not be inquired into— the only question being, who was in possession, and how that possession was lost. It is therefore immaterial how perfect a man’s title may be, if he enters upon the possession of another who has no title whatever, by violence, he cannot protect himself against the proceeding for a forcible entry and detainer. Davidson v. Phillips, 9 Yerg. Rep. 93; Childress v. Black, ib. 317; Turner v. Lumbrick, Meigs’s Rep. 12;
The purpose of the statutes being to redress the party whose possession has been invaded, and to place both parties in the same situation they respectively occupied previous to the commission of the grievance, it is not competent for a court of chancery to interpose by injunction, and arrest the execution, upon the allegation of the plaintiff’s insolvency. The exercise of such a jurisdiction would defeat the design of the legislature, and be an interference above, or in despite of the law, ■ If the defendant had not intruded, upon the plaintiff’s possession, but for the purpose of vindicating his title, had resorted to an action of trespass, or ejectment, he could not, by the action of any tribunal, compel the party in possession to give security for the payment of such damages as might be recovered. It is difficult, then, to perceive any ground upon which he can indirectly effect that object by being maintained in his possession, and thus preventing the defendant from receiving the rents and profits of the land, which furnish the cause and criteria of the damages. He must submit to repair the wrong which the verdict and judgment ascertain he has committed, and assert his title in the legal mode.
In Dedham v. Smith et al., 2 A. K. Marsh. Rep. 260, it was decided that a successful plaintiff in a warrant of forcible entry and detainer, should not be restrained from having restitution, because the defendant has recovered a judgment in ejectment for the premises. So it has been held that a court of chancery cannot rightfully award an injunction against a writ of restitution, upon a conviction of forcible entry and detainer. Hamilton v. Hendrix’ heirs, 1 Bibb’s R. 70; see also 1 Monr. Rep. 190. The case of Ashby v. Kizer et al., 1 Gilmer’s Rep. 153, is unlike the present. There, it was determined that a court of equity has jurisdiction to stop proceedings at law to reverse a judgment on a writ of forcible entry, in which a second writ of restitution had been
Although we have seen that the bill might be sustained in respect to the waste alleged to have been committed and contemplated, yet the case is not even to this extent made out by the proof. The defendant does not admit the legal title of the vendor under whom the complainants profess to claim, or the equitable title they assert in virtue of their purchase, but requires them to prove it. The only evidence upon these points, is the patent from the United States to their vendor. It was incumbent on the complainants to have shown their right to file a bill. This could only be'done by proof of the title they allege ; in the absence of such evidence, it is clear that they are not entitled to the relief they seek. This view relieves us from further considering the defence; and we have only to declare that the decree is affirmed.