50 Ala. 373 | Ala. | 1874
This is a suit in the nature of an action of ejectment, to recover the possession of land, brought under our statute. The cause was submitted to a jury on the trial in the court below, on the plea of not guilty. The charge of the court being adverse to the plaintiff, he took a nonsuit; and judgment was rendered against him in favor of the defendant for the costs. From this judgment he appeals to this court. Here, he insists that certain rulings, and the charge of the
In ejectment, under the form prescribed by the Code, the fictitious proceedings are abolished, and the law of the common-law action of ejectment is kept in force, except so far as the same is changed by the Code. Rev. Code, §§ 2611, 2610; 38 Ala. 44, 135. The statute declares, that “ the defendant may plead that he is not guilty of unlawfully withholding the premises claimed by the plaintiff; ” and that “ such a plea is an admission by the defendant, that he is in the possession of the premises sued for, unless he states distinctly upon the record the extent of his possession; in which case, it is an admission of possession to such extent only.” Rev. Code, §§ 2613, 2614; 29 Ala. 542. Here, the plea is general, and admits the possession by the defendant of the premises sued for; but it admits no more. It does not admit that this possession is wrongful, or unlawful. It is merely a possessory action, and only the right of possession is tried, and not the mere right to the land. Troublesome v. Estill, 1 Bibb, 128. The plaintiff, then, must show, not simply that he has been the owner of the land sued for, but that he had at the commencement of the suit the legal right of possession. 3 Bac. Abr. Bouv. pp. 256, 257; 1 Chitt. PI. pp. 187, 188 et seq.; 14 Peters, 322 ; 15 Peters, 410; 6 Peters, 431. The complaint in this form of action states, that the plaintiff brings his action to recover the land sued for, “ of which he was possessed before the commencement of the suit; and after such possession accrued, the defendant entered thereupon, and unlawfully withholds and detains the same.” Rev. Code, § 26Í1; lb. p. 677. To this the defendant answers by his plea, that “ he is not guilty of unlawfully withholding the premises claimed by the plaintiff.” Rev. Code, § 2613, supra. This issue involves the fact of a possession, under some legal right by the plaintiff, of the land sued for, and also an unlawful withholding of the same land by the defendant. Whatever testimony will show this possession in the plaintiff, is competent evidence. If mere possession alone is relied on, this may be shown by parol. But if the right to the possession is derived from the title to the land, then the title must be shown by proper instrument in writing executed as required by the statute. Rev. Code, §§ 2599, 1535, 1536.
Here, the plaintiff did not attempt to show any title to the land in himself, except by his declarations that he had once been the “ owner ” of the land in question, and had sold the same to the defendant in the year 1865. In connection with this evidence, he also put in evidence before the jury a bill in
The judgment of the court below is reversed, arid the cause remanded for a new trial.