Huffaker v. Boring

COLLIER, C. J. In Wright v. Lyle, 4 Ala. Rep. 112, the complaint stated, that the plaintiff “was in possession of a certain messuage and parcel of land, with the appurtenances, containing thirty acres, be the same more or less, adjoining Thomas B. Watts and others, in the county of De Kalb, until James C. Wright, on &c., unlawfully entered thereupon, and forcibly and unlawfully detains and keeps possession of said land, and appurtenances, &c.” ThisCourtdeterminedthat the description of the land was not sufficiently definite, but held, that the allegation of force showed an unlawful detainer. In McRae v. Tilman & others, 6 Ala. Rep. 486, the lands were described in the complaint, as “ a certain mes-suage with the appurtenances and lands, situate, lying and being in, and a part of, township 14, range 1, west, and section 9 S. W. qr. 80, lying in the county aforesaid, having had lawful and peaceable possession of the said messuage and lands for the space of five years,” &c. Here, too, it was determined that the description of the land was too general; and not being aided by the verdict and judgment, the proceedings before the justice were set aside. [91] The boundaries of the land alledged to be forcibly entered upon, jt is said, need not be specially set out, and a warrant was adjudged to be sufficiently certain, which charged the entry ‘‘ by Moore on one dwelling house, one kitchen, one smoke house, one tobacco house, one stable, one com house, and sixty acres of arable land, twenty acres of pasture land, and forty acres of woodland, lying in the county of Madison, on the waters of Muddy creek; all of which was in the peaceable possession of Massie.’’ [Moore v. Massie, 3 Litt. Rep. 296.] In respect to the quantum of force necessary to sustain the proceedings for a forcible entry and detainer, it has been held, that the bare entry on the possession of another, (with or without title,) without his consent, is, in contemplation of law, a forcible entry. [Brumfield v. Reynolds, 4 Bibb’s Rep. 388; Henry v. Clark, id. 420; Chiles & Co. v. Stephens, 3 Marsh. Rep. 347.] So, a mere refusal to restore the premises, is in itself force, within the statute. [Ewing v, Bowling, 2 Marsh. Rep. 35 ; see, also, Swartzwelder v. U. S. Bank, 1 J. J. Marsh. Rep. 44.] Our previous decisions which have been cited, we think, are clearly distinguishable from the case now before us. In the first, the premises were described as adjoining Watts and others; whether on the north, south or where else was not stated, nor was the locality of Watts shown; and for any thing appearing to the contrary, he may have had a dozen tracts of land in De Kalb county. In the second case, a messuage being in and a part of a quarter section, was alledged to be forcibly detained, without stating how much, or where situate within the same. But in the case at bar, the premises are described as fifty acres, situate within the west part of a quarter section. This description, we think, is sufficiently specific — perhaps as much so as was practicable, unless its precise location could have been ascertained by a survey ; and if the party in possession was perverse, it would not be easy to make a survey against his consent. The allegation as to the forcible entry and detention, alledges force, quite as directly and fully as the law requires. This is so clear, from a comparison of the complaint with the statute, as to relieve us from the necessity of endeavoring to make it plainer. The second section prescribes the cases, in which forcible entry and detainer is the appropriate remedy, and the seventh section points out the essential constituents of the complaint. [Clay’s Dig. 250, 251.] [92] The written agreement, and all the evidence relating thereto, and to the possession which it was intended to confer on the plaintiff, were clearly admissible. The object of this evidence, was merely to show the peaceable possession of the plaintiff, at the time the entry was made by the defendant, and its effect was to prove, that the person who relinquished the possession, had himself occupied the premises for several years, and parted with them to the p’aint if under a contract. In this point of view, the defendant cannot be heard to object, that he was not a party to the writing, any more than the defendant in an action to try the title, could oppose the introduction of the documentary evidence of the plaintiff, because it did not emanate from himself, or he was not a party to it. As to the execution of the writing, this has been proved by the party who executed it, and thereby parted with his interest in the premises to the plaintiff; in addition to this, one of the subscribing witnesses afterwards proved it. Its genuineness, then, was twice established. [Falls & Caldwell v. Gaither, 9 Porter’s Rep. 605.] But the evidence that a witness « had fodder on the premises by plaintiff’s leave, and plaintiff told witness that he could have the land,” &c., was inadmissible to prove the plaintiff’s possession, or the defendant’s entry. It was not offered as the declaration of a party constituting part of the res gesta, but as proof of an independent fact. To admit its competency, would, in my opinion, be to hold, that a party’s mere claim of right, and attempt to exercise ownership, are allowable to prove his peaceable possession. Such evidence, even if it tended to establish the fact, would be obnoxious to the objection, that it was a mere narration of what the plaintiff himself said. It is true, that the verdict and judgment are not very formal, yet we think they are entirely sufficient. In finding for the plaintiff, the jury affirm that his case was made out by proof, and that the defendant’s plea is false; and the legal effect of the judgment is, that the plaintiff recover the premises. There was no necessity for an express award of execution for the costs, or to restore the possession. These were but consequences of the judgment, as provided by the statute. [Clay’s Dig. 252-3, §§ 13, 14; see, also, Wheatly v. Price, 3 J. J. Marsh. Rep. 168,] For the admission of improper evidence, the judgment of the Circuit Court is reversed, and the cause remanded, that such further proceedings may be had as are agreeable to law. [93] GOLDTHWAITE, J. As to the point upon which this judgment is reversed, my opinion is, that the plaintiff could properly prove, that the witness, or, indeed, any other person, had fodder upon the premises in controversy, by his leave, because this was proof of an actual possession of the land. Whether the forcible entry of the defendant was an intrusion on this possession, or on that of some other person, or by virtue of a previous occupancy by himself, was matter for him to show; but the proof by the plan-tiff was regular, though very weak. The evidence of his willingness to permit the witness to occupy the land for the year, in which the trial was had, was incompetent, as showing nothing more than the assertion of a right to rent the land. This assertion neither proved, nor tended to prove, an actual possession, unless accompanied by some act connected with the assertion. In this opinion I am authorized to state the concurrence of Judge Oemond.