77 Ala. 594 | Ala. | 1884
In Dumas v. Hunter, 30 Ala. 75, it was decided that secondary evidence of the written demand and notice, required by the statute to the maintenance of an action of. unlawful detainer, is inadmissible, without first laying a proper predicate for its introduction, by proof of notice to the defendant to produce. It was placed upon the ground, that the law required such notice to be in writing, and it constituted a precedent fact necessary to be proved before the action could be maintained. — Code, 1876, §§ 3697, 3700. While there is some doubt in our minds as to whether this ruling harmonizes entirely with the principle, that notice to produce is unnecessary where the writing to be proved is itself. a notice, there are plausible reasons for the distinction made, and we adhere to the authority of the case. In view of this rule, the court erred in permitting oral evidence of the contents of the written demand and notice served upon the defendant, without first laying the usual predicate.
While the general ruléis, that, in order to maintain an action of unlawful detainer, the plaintiff must show a prior actual possession of the premises sued for, mere constructive possession being insufficient; yet the principle is settled by this court, that where the action is instituted by a landlord against a tenant, for unlawfully holding over after expiration of his term, the tenant is estopped from disputing the fact of the landlord’s actual prior possession, and he can not defend, therefore, by making proof of the fact that the plaintiff had merely a constructive possession. — Beck v. Glenn, 69 Ala. 121. The present action was maintainable, without showing that the plaintiff had gone into actual possession of the premises after his purchase from defendant. The possession of the tenant was in right of the landlord, and there had been a termination of his possessory interest.
Three years of possession by a tenant, who recognizes the tenancy by paying or promising to pay rent to the landlord, is clearly no bar to an action of this character, where the period of the tenant’s lease is determined. Section 3705 of the Code bars such a proceeding only in a case where the defendant has remained in “ the uninterrupted occupation ” of the premises in controversy for the space of three years preceding suit brought, and his estate in the premises sued for remains undetermined. It thus requires the existence of three facts which do not concur in this case : 1st, an estate or interest claimed by the defendant; 2d, the continuance of this estate undeter
Reversed and remanded.
