121 Ala. 303 | Ala. | 1898
— This was an action of forcible entry and unlawful detainer brought by the appellee, Del-phine Moog, against the appellant, Prank Mallon, in the justice court in the city of Mobile on the petition of the defendant Mallon under the provisions of sections 2147-8-9 of the Code of 1896. If the cause had been carried to the circuit court by appeal from the judgment of the justice of the peace, it would need no argument to demonstrate •that the-rulings of the'circuit court on the trial in that
Tbe effect of tbe act in question, is, in certain cases of forcible entry and unlawful detainer, where tbe possession of tbe defendant is not acquired by virtue of any contract or agreement with tbe plaintiff, or by force, to convert tbe proceedings into statutory action of ejectment. The manifest purpose being, in such cases, to save a multiplicity of suits. Under tbe provisions of the statute tbe sworn petition of tbe defendant for removal, among other statements, must contain a statement, that tbe entry was made peaceably and under claim of title. Without this statement no authority is conferred on tbe judge to order tbe removal. To entitle tbe defendant to the benefits conferred by tbe statute,. it is not enough that bis entry was a peaceable one, but it must also have been made under a claim of title. It is not sufficient if tbe claim is set up under an after acquired title. One who enters, though peaceably, without title or claim of title, is but a trespasser, and tbe statute wqs not enacted for tbe benefit of trespassers. Tbe only evidence offered by tbe defendant of title or claim of title, was tbe title which be acquired long .after bis entry, and even subsequent to tbe removal of tbe cause into the circuit court. The bill of exceptions recites that, tbe defendant, was introduced as a witness in bis own belialf and his testimony tended to show “that be knew tbe land in controversy, and that he bad it enclosed with a fence about May, 1896; that the lot had been enclosed with a wire fence by-Mr. Moogprior to that time; that be removed tbe wire fence which bad been erected by plaintiff and put bis fence in its stead; that the defendant in erecting his fence and removing plain-ti it's fence did it in a quiet, peaceable manner and without creating any disturbance; that be pulled plaintiff’s posts from tbe ground, and together with the wire deposited them on an adjoining lot; that no persons were present except defendant and the men whom be employed to do tbe work; that be does not remember
' Section 2149 of the Code which corresponds with section 3 of the original act, provides: “On the trial of all cas>. s removed under the provisions of the two preceding sections, to the circuit court, the plaintiff.must recover on the strength of his legal title as in a statutory action in the nature of an action of ejectment, unless he can prove that the defendant, or those under whom he claims, entered on said lands under some contract or agreement between [with] plaintiff, or those under whom he claimed, or by use of force; in which latter case no inquiry can be had as to the respective strength of the legal title of the plaintiff or defendant.” Wliat is meant by the expression in the statute, “by use of Uui.” becomes a pertinent question, and we may here observe that it does not necessarily involve a disturbance or breach of the peace. In section 2126 which forms a part of the chapter that embraces the sections under consideration, we find the legislative interpretation of what constitutes force in actions of this character. That section is as follows: “A forcible entry and detainer is, where one, by force or strong hand, or by exciting fear or terror, enters upon and detains lands or tenements in the possession of another; as by breaking open doors, windows, or any other part of a house, whether any person be within or not; by threats of violence to the party in possession, or by such words or actions as have a tendency to excite fear or apprehension of danger; by putting out of doors, or removing the goods or chattels of the party in possession; or by entering peaceably, and then, by unlawful refusal, or by force or threats, turning or keeping the party out of possession.” The forcible entry and detainer may be of lands or tenements. The force used, may be by “breaking open a door, -window, or other part of the house.” The presence or absence of the party in the prior actual pos
The case of McGonegal v. Walker, 23 Ala. 361, cited by counsel for appellant, is distinguishable from tbe present case. In that case Walker, as shown by the statement of tbe facts, tbe plaintiff in tbe forcible entry suit, bad entered upon tbe land which was then in the actual possession .of the defendant, and was proceeding to construct a fence, which tbe defendant tore down and removed, back to near tbe old fence line between the parties — the defendant McGonegal being already in peaceable possession, the bare removal of tbe fence would not constitute forcible entry and detainer; this is as we understand that case. In tbe present case there is no pretense of prior possession on the part of the defendant, or possession, at tbe time the plaintiff enclosed the lot with her own fence. Under tbe facts of this case, according to tbe constructionwe have given tbe statute, tbe legal title could not be inquired into.
We find no reversible error in tbe record and tbe judgment of the circuit court is affirmed.