Welden v. Schlosser

STONE. J. — -Forcible entry and detainer was a public offense in England, made so by statute. — 4 Bla. Com. 148; 1 Russ, on Cr. 421. In this, p,s in many other States of the Union, it is a tort, to be redressed by a civil action, which the statute gives. It is an action summary in its forms and machinery, to regain possession of realty, which has been tortiously taken, or is tortiously withheld. It is purely possessory, and can not be. maintained unless the plaintiff has had prior possession. Title can not be inquired into. — Code of 1876, § 3704. The statute defines the degree of force necessary to constitute a forcible entry. Our first statute on this subject was approved February 10th, 1805, and is found in Clay’s Dig. 250. Under that statute, there have been several rulings of this court, defining what degree of force is necessary to constitute a forcible entry. — Botts v. Armstrong, 8 Por. 57; Matlock v. Thompson, 18 Ala. 600; McGonegal v. Walker, 23 Ala. 361. The wrong which is sought to be -redressed in the present suit, was perpetrated in 1882., Before that time, the act “ to [359] amend section 3696 of the Code of Alabama” was approved. Pampli. Acts 1878-9, p. 49. That act, in defining what particular wrongful acts shall constitute forcible entry and detainer, makes some additions to those enumerated in the former statutes. One addendum is, “ entering peaceably, and then by unlawful refusal . . . keeping the party out of possession.” This clause is not found in any of the older enactments. It is contended for appellant, that there is no evidence in this record that plaintiff demanded possession, before he instituted his suit. “Unlawful refusal” is'the language of the statute. The plaintiff testified that, soon after defendant moved into the house, he, plaintiff, “asked him if he was going to give up the premises in controversy.” Defendant replied, “he had entered it [the land] from the Government, and intended to hold it, if he. could.” True, the defendant in his testimony denied that any demand had been made of him ; but added, “ that he was claiming the said premises as" his own.” This was certainly enough testimony, to justify its submission to the jury on the question of unlawful refusal. We do not understand the appellant as controverting the proposition, that, plaintiff had possession before, and at the time he, the appellant, took possession. ILe rests his defense on the assertion, that there was no evidence of a forcible entry or detainer. We have disposed of that question above, adversely to appellant. The general charge asked by appellant should not have been given. The charge given at the instance of plaintiff below is consistent with the views expressed above, and is free from error. The testimony offered by defendant, and ruled out by the court, tended to shed no light on the question of possession. If it had any tendency, it was to show plaintiff’s right and claim to the property. This was rightly ruled out. Affirmed.