56 Ala. 188 | Ala. | 1876
The testimony in this record leaves it in dispute, whether the tenement, which is the subject of the controversy, was erected by George R. Taylor, the appellee, or by Jerry Taylor, his brother, now dead. The construction, most favorable to appellee, which it will allow, is, that Jerry Taylor, who was a married man, and Geo. R. Taylor, lived together in the house for about two years — say from 1858 to 1860. Geo. R. testifies, that during this time his brother boarded him, for the privilege of occupying the house. At the end of said two years, George R. went away, and did not afterwards make that house his home, though he made ■frequent visits there. Jerry Taylor continued to reside in
There was testimony tending to show that no rent was ever claimed by, or paid to Geo. E. Taylor, unless his said board for two years wras rent; that he never asserted claim to the property, till said 17th November; that Jerry Taylor, his widow, and Bobertson, successively paid the taxes on the property, during all the time it was so occupied; and that after Bobertson and wife had agreed to let the house to Wray, Geo. B. Taylor applied to them to take the house on rent, offering to pay as much as any one else would; but that they would not let him have it, in consequence of their prior contract with Wray.
The foregoing is a substantial statement of the testimony, tending to show possession in Geo. B. Taylor, on which he relied for a recovery in this case. The statute, defining the scope of inquiry in cases of forcible entry and detainer, declares, that “the estate, or merits of the title, can not be inquired into on the trial of any complaint exhibited under this article,” and that “the uninterrupted occupation of the premises in controversy by the defendant, for the space of three entire years preceding the exhibition of the complaint, is, if the estate of the defendant is not determined, a bar to any proceeding under this article.” — Bev. Code, §§ 3301,3308.
In Russell v. Desplous, 29 Ala. 308, this court said, “A possession, which existed some years antecedent to the wrong
It is manifest that the possession, on which plaintiff relied for a recovery in the court below, was what took place on 17th November, 1871. We think the legislature intended something more substantial and real than that. The quiet and repose of the home — security from intrusion into what the law dignifies with the name of castle — these, in large degree, constitute the great underlying policy on which this whole class of legislation rests. It was never designed that this wholesome enactment should furnish the machinery for the perverted use attempted in this case. We think the testimony in this record fails to disclose an interval between the possession of Bobertson and wife, and Wray, their tenant. There was, therefore, no time when Geo. B. Taylor could enter, without himself committing a forcible or unlawful entry. Hence, we hold, that he failed in the first fundamental condition of his. right to recover. — See Rochelle v. Harrison, 8 Por. 351.
It is unnecessary that we apply these principles to the several rulings of the Circuit Court. Several of the charges asked and refused should have been given.
Beversed and remanded.