Russell v. Desplous

WALKER, J. The complaint in this action, omitting the description of the land, is in the following words: “ The petition and complaint of Peter Desplous represents, that he claims, by reason of his intermarriage with one Matilda Green Lyles, the fee-simple owner and possessor thereof, to have been in lawful and peaceable possession, for eight years past, of the following lot of land, in the city of Mobile,” &c. “ Your petitioner further represents, that during the year 1843, he intermarried with the said Matilda Green, your petitioner’s present wife, and the then widow of George Lyles, deceased; which said Matilda had sometime theretofore, to-wit, on the first of July, 1828, inherited the title, and succeeded to the actual possession of her said deceased husband, the said George Lyles, in and to the said premises, and being so seized and possessed of the same, had thereafter, to-wit, on the 1st day of March, A. D. 1829, transferred her said possession thereof to one Tucker, as her tenant at will; which said Tucker, afterwards, on the first day of December, 1829, had deserted and abandoned the said demised premises before the' delivery to his lessor; whereby the possession of the same reverted in law to his lessor, the said Matilda, and continued in her wp to the period of her said intermarriage with your petitioner; by virtue whereof, the same became and was lawfully vested in your petitioner. And your petitioner further represents, that, being so lawfully possessed thereof, afterwards, to-wit, on the 1st day of January, A. D. 1850, at the county and State, and in the city aforesaid, one Henry G. Russell unlawfully entered [311] upon, and took possession of tbe said demised premises, so deserted and abandoned by tbe said tenant, Tucker, lefore their delivery to the lessor thereof, and bath since unlawfully detained and kept possession of tbe same from your petitioner, to bis great damage, and against the form and effect of tbe special act, in such cases made and provided, of tbe legislature of said State, approved March 3d, 1848, and entitled an act to provide a more efficient remedy in cases of unlawful entry and detainer in the city of Mobile. Wherefore be says, that the said Henry C. Russell has been guilty of an unlawful detainer, and prays process according to law and tbe circumstances of tbe case issue,” &o. It may admit of doubt, whether this conplaint is designed to aver that the wife of the plaintiff, and, after the marriage, the complainant himself, had actual possession of the land during the period between the abandonment by the tenant, Tucker, and the alleged .intrusion by the defendant omthe land; or that the wife had only a constructive possession, inferrible from the title of her deceased husband or herself, and the husband a constructive possession, inferrible from his intermarriage with one who had the title. It matters not which of the constructions suggested is adopted ; because, in our judgment, under either, the complaint is insufficient. The part of the act of 1848, which, it is argued, authorizes this proceeding, is as follows : “ When any tenant, or tenants at will, or at sufferance, for a part of a year, or one or more years, or any person claiming by, through, or under them, or who shall take possession on their desertion or abandonment of the demised premises during their term, or *lefore their delivery to the lessor,” &c., “shall be guilty of an unlawful detainer.” Since the decision of this case, reported in 25 Ala. 514, the complaint has been amended, and is sought to be sustained under that provision of the foregoing statute, which confers the right of action against one who shall take possession before the delivery of. the demised premises to the lessor. Now, if after the abandonment of the premises, in December, 1829, by the tenant, Tucker, the complainant’s wife had actual possession until her marriage in 1843, and the complainant himself had actual possession after the marriage, it is clear [312] that the entry on the land by the defendant, in 1850, could not have been before the delivery of the land to the lessor ; and therefore the complaint is not good, if we regard it as averring an actual possession during the intermediate time between the abandonment by Tucker, and the alleged intrusion by the defendant. ■ It is the law in this State, clearly set forth' in several decisions, upon unassailable reasoning, that an actual possession is necessary to the maintenance of this action. The constructive possession, which the law infers from the title, is not sufficient to maintain it. If it were, a controversy as to title, which it is the purpose of the statute to avoid, would inevitably arise.-; — McKeen & Wife v. Nelms, 9 Ala. 507 ; Singleton v. Finley, 1 Porter, 144 ; Childers v. McGehee, Minor, 131 ; Cunningham v. Green, 3 Ala. 127 ; Wright v. Mullins, 2 S. & P. 219. A possession, which existed some years antecedent to the wrong done, is not sufficient. The action is designed to redress a wrong done to the actual existing possession, which the legislature supposed required more immediate and speedy relief than could be obtained through the ordinary forms of judicial proceeding. If then, there was no actual possession from December, 1829, to January, 1850, when the entry on the land was made by the defendant, this action cannot be maintained ; because, conceding that the complainant, after his marriage, and his wife before the marriage, had any possession, it was a mere constructive possession, and not an actual possession. It is argued, that the words of the statute, giving the action against oñe who enters before the delivery of the premises to the lessor, would authorize this suit against one who enters at any time after the tenant abandons the land, and before the lessor takes possession, no matter how long the period may be. To this construction of the statute we cannot subscribe. A possession of premises taken near twenty years after their abandonment by a tenant, who never delivered them, was not intended to be included within the statute, under the description of a possession taken before the delivery of the premises to the lessor. The design of the statute was, to provide a speedy and efficacious remedy against one who obtrudes himself upon the premises', between the outgoing of. a tenant [313] and the delivery to his lessor, and who avails himself of the departure of the tenant to enter, before the premises are delivered to the landlord, and within such a time that the continuity of the possession is not broken. It cannot embrace one who enters on the land, years afterwards, without any connection with, or reference to the past tenancy. To hold otherwise, would be to contravene the entire spirit and intent of the statutes governing this and the kindred proceedings. It must b$ observed, that the special statute under consideration does not repeal the general law on the subject. The court below gave two charges, and refused one. The first charge given by the court pertains to the question of the right of the complainant, resulting from his marriage, to' maintain the action alone. That question we do not consider, because we deem it unnecessary. From the principles laid down in this opinion, it follows, that the court erred in the second charge given ; and in the refusal to charge, that under the facts set forth in the bill of exceptions, the complainant has no right to recover in this action. The judgment of the court below is reversed, and the cause ■remanded.