Knowles v. Ogletree

THOBINGTON, <1. Forcible entry and detainer, as generally defined, is essentially an action given to protect the actual possession of real estate against unlawful and forcible invasion, to remove occasion for acts of violence in defending such possession, and to punish breaches of the peace committed in the entry upon or the detainer of real property. 8 Amer. & Eng. Encyc. of Law, p. 102. Neither the question of title nor of the right of entry or of possession is involved in the issue, the gist of the action being the entry and de-tainer by force and violence, and the ousting from a peaceable possession contrary to law. — Horsefield v. Adams & Knapp, 10 Ala. 9. As defined in this State, since the act of [558] February 13, 1879 (Acts 1878-9, p. 49), forcible entry and detainer also includes a peaceable entering- upon lands, “and then by unlawful refusal, or by force and threats, turning or keeping the party out of possession.” — Code 1886, § 3380. The unlawful refusal here mentioned, however, has no reference to the question of title. That can no more be inquired into in an action under the statute, since the amendment above cited, than before. — Espalla v. Gottschalk, 95 Ala. 254. An unlawful refuml presupposes a prior lawful demand, but, in order to render such demand lawful, it is only necessary that a prior actual possession shall have been intruded upon by the person on whom such demand is made. It is not essential that the demand should be based upon ownership or title in order to make the refusal thereof unlawful within the meaning of the statute. The legal effect of the statute is, that, if the disseizor enters by force or threats, no demand is necessary before commencing the action; but if he takes possession “by entering peaceably,” then, in order to support the action, there must be a demand of possession and unlawful refusal thereof, or force or threats used in “turning or keeping the party out of possession.” In the absence of all force or threats either in entering or keeping possession, two facts must exist in order to support the action: First, there must have been a peaceable intrusion upon a prior actual possession; second, there must have been a demand of possession and' an unlawful refusal thereof. It is not essential the demand for possession should be in writing, or that it should be in express or positive terms; it is a question of fact to be determined by the justice (or by the jury on appeal) from all the evidence whether there has been a demand, or the equivalent thereof. It may be inferred from the acts and declarations of the parties as well as shown by direct testimony. So, also, as to the unlawful refusal to comply with the demand. Mere silence, or a failure to comply, in the face of a demand, or that which is equivalent to a demand, may be a refusal. In the case at bar there was a conflict in the testimony as to the fact of plaintiff’s prior possession, and there was no proof of any direct, positive demand of possession by plaintiff, and refusal thereof by defendant. The statement in the bill of exceptions of the proof on these two questions is rather obscure and unsatisfactory, but enough is shown to make it appear that there was some testimony touching these two facts, and it was for the jury to determine its evidential value. We can not say, therefore, that the portion [559] of the general charge to which the defendant excepted is abstract. “A charge can not be considered abstract when there is any evidence, however Aveak and inconclusive, tending to support the hypothesis on which it- is based.” Schaungut's Admr. v. Udell, 93 Ala. 302. Furthermore, an abstract charge asserting a correct legal proposition is no ground for reversal, unless this court is reasonably convinced it must have misled the jury. We see nothing to lead us to the conclusion that such was the effect of the charge in question, nor does it appear to be otherwise objectionable. The special charge requested by appellant states a correct legal proposition in the, abstract, but, when considered with reference to the testimony, its tendency would have been to mislead the jury. As we have said, there was no testimony showing a direct, unequivocal demand of possession by ap-pellee and refusal thereof by appellant, before the suit was commenced, but there was some testimony before the jury from which they might have inferred such demand and refusal. Had the charge, as asked, been given by the court, without explanation, it would practically have excluded from the consideration of the jury all the testimony touching such demand and refusal. A charge technically correct, but which requires explanation in order that the jury may not be misled by it, is properly refused. — Eastis v. Montgomery, 93 Ala. 293. The general charge asked by appellant was properly refused. There was a conflict in the testimony as to a material fact, viz., the matter of appellee’s prior possession, and there was also testimony as to the demand of possession and refusal thereof, the tendencies of which authorized the jury to draw different inferences. — Payne v. Mathis, 92 Ala. 585. The exceptions reserved by appellant to the several rulings of the Circuit Court were not well taken, and its judgment is accordingly affirmed.