Horsefield v. Adams

10 Ala. 9 | Ala. | 1846

GOLDTHWAITE, J.

1. When our statutes on the subject of forcible entry and detainer are examined, we think there can be but one opinion on the point on which the Circuit Court reversed the judgment of the justice. They were intended to give a summary remedy wherever the possession of real estate is intruded upon forcibly, or where, after a peaceable entry, the possession is detained in that way from the person upon whom the entry was made. The possession .at the time of intrusion, is the only matter which is permitted to be the subject of investigation. All questions as to the ultimate title or as to the right of possession, as distinguished from the actual possession are excluded from the jury. [Dig. 250, § 1, 2, 3, 5, 20.] The statutes do not take away the right of a party to protect his possession but the right of re-entry is expressly abolished by the first section of the act, unless it can be made in a peaceable manner. [Dig, 250, $ 1.] After thus abolishing the right of entry sub-modo, the statute proceeds to define what shall constitute a forcible entry, and not content with thus protecting the possession, immediately afterwards declares, that whenever the entry is lawful, or peaceable, if afterwards it is held unlawfully, and with force or strong hand, or weapons, or violence, or menaces, &c. &c., it shall be a forcible detainer. [Dig. 251, <§> 14.J Whether this was intended to enable any one whose possession is intruded on without force, to consider the intruder as a forcible detainer of the possession, after his refusal to permit the party to re-enter peaceably, is a matter which we need not decide at this time, as not involved here; but however this may be, it is evident the chief object of the statute is to maintain the party having the actual possession, against the entry of one whose right of possession, or of re-entry has not been conceded by him. If a party was permitted to reenter by force, for the reason that he himself had previously been unlawfully ejected, there would be an end to all resort to law, and in such cases the strongest would prevail. If the defendants can assume that the complainant is a trespasser, why should not he, in his turn, assume, or prove, that they or somebody else trespassed on him? And if so, where is the investigation to end ? To make this view clear’, it is-necessary only to look at the records. The plaintiff was turned out of possession in 1841, under a writ of Hab. fac. poss. to which he was not a party, and is not shown' to be a. privy, at the suit of Walker. Whilst he is suing to regain the possession from which he has been expelled, Hilliard, or rather the defendants, were put in possession under a writ to which, as before, the plaintiff is not a party, and is not shown to be a privy. When he was again put in possession, on the 31st December, 1844, by the writ of restitution against Chandler, we are not prepared to say, either that the defendants were, or were not, in law, such privies in estate as made the entry lawful and proper as to them; but we entertain no question that then’ possession was so disturbed and ended, as not to be lawfully regained by their own forcible act. If their privity with Chandler was a matter of contest, the want of connection between him and them, could be shown in a suit against the sheriff, for his entry under the writ of Horse-field, or against Horsefield for directing their eviction; or by some other proceeding equivalent to a suit. [Chiles v. Stephens, 1 Marsh. 333; Howard v. Holman, 4 Ala. Rep. 592.] What we have said is sufficient to show, that if Horsefield unlawfully ejected the defendants, this furnished no justification for them to eject him in a forcible manner, although the force used did not extend to a breach of the peace. The reverse of this proposition was charged by the justice of the peace, and the Circuit Court erred in reversing his judgment on this ground.

2. As the ground .for reversing the judgment of the justice cannot be sustained, the whole record, so far as covered by the assignments of error in the Circuit Court, is opened, and we must inquire whether the records offered were relevant to the point in issue. This was, that the defendants forcibly entered on the plaintiff on the 31st of December, 1844. To show they did not so enter, the record of the forcible entry suit between Hilliard, Jude, Carr and Ketchum, would have been relevant, if they had proposed to show that the plaintiff was in privity with the defendants to that suit, or any of them, but prima facie the record itself was irrelevant, without this connection being suggested. This connection, however, was not pretended, but this, as well as the other records offered for the purpose, as the justice states it, to sever the identity between Chandler and the defendants. This is not very clear in itself, unless we intend that the plaintiff had previously attempted to show that Chandler was in some way identified with them. The intendment of such a fact is without any warrant from the record, and if the defendants wished to raise any point upon it, their’s was-the duty to state the evidence applicable to it. We'axe unable to see any relevancy in the excluded records, _ and hence conclude they were properly rejected.

3. The charges refused seem either to be predicated on the records which were rejected, and therefore fall with the point just discussed, or else arise out of other evidence given at the trial. What this other evidence was, we may learn, so far as we can be instructed by the affidavit in aid of the motion to amend the record, but this motion was finally refused, and therefore constitutes no part of the record, which can avoid the effect of the error already ascertained. .The transcript from the justice cannot be amended in the Circuit Court, but must be amended, if at all, by the justice of the peace. [Perryman v. Burgster, 6 Porter, 99.] This [being the case, we cannot look to the proceedings on the motion to amend for any purpose, as the case is presented.

4. We are not aware, the expression of an opinion on the respective claims of the parties is called for, at this time, or if expressed, that it would have the effect of an adjudication; but we do not well perceive how the possession of Horse-field, in 1841, when he seems to have been evicted under Watkins’ judgment, in the ejectment suit-against Bebee, Et-ter, Hall, and Brown, can be affected without showing he is in privity with the defendants in that suit, or some one of them, if he sues in proper time to regain his possession. The same remark would apply to'the ejectment suit of Hilliard against Bebee and Etter, if Horsefield had been evicted under that.

On the whole case, as before us, we can see no error in the proceedings of the justice, and therefore the judgment of reversal of the Circuit Court must be here reversed and the cause remanded, with instructions for proceedings in' conformity with this opinion. It will be seen we have omitted all examination of the charges given, and this is for the reason that their correctness is not seriously controverted, but if it was, they seem to be in entire accordance with the principles settled in Botts v. Armstrong, 8 Porter, 57.