Mooty v. Doyle

de GRAFFENRIED, J. The action for use and occupation of land was unknown to the common law, and section 4753 of the Code prescribes the only classes of cases in which it can be maintained in this State.— Lankford v. Green, 52 Ala. 103. In all cases brought under subdivisions 1, 2, and 3 of the above section of the Code, “there must exist a relation between the parties founded on an express or implied contract which estops the defendant from drawing the title of the owner into the controversy.”—Burgess v. Amer. Mortgage Co. of Scotland, 115 Ala. 468, 22 South. 282. The code committee added subdivision 4 of the above section, which reads as follows : “When the defendant has gone in possession of the land unlawfully.” This subdivision was intended to authorize one in possession of land to recover for the unauthorized use of his land by a trespasser against his possession, which could not be done prior to the adoption of the present Code.—Weaver v. Jones, 24 Ala. 423; Burgess v. American [579] Mortgage Co. of Scotland, supra. In order to recover for trespass to land, a party must be in the actual or constructive possession of the land at the time of the Trespass.—Buck v. L. & N. R. R. Co., 159 Ala. 305, 48 South. 699. There was no evidence in this case from which it can be inferred that plaintiff ever had, prior to the commencement of this suit, the actual or constructive possession of the land for the use and occupation of which this suit was brought. He offered in evidence a deed from Matilda Roberson to Mrs. R. O. Mooty, made in 1906, conveying the lands, and a deed from the Tuskegee Normal School to the same land, made to Matilda Roberson in 1902; but neither Matilda Roberson nor the Normal School was shown to have ever been in possession of the land. The plaintiff is evidently a man, while the deed from Matilda Roberson was to Mrs. R. O. Mooty, a woman. The deeds were not admissible in evidence, and the court committed no error in excluding them. If the plaintiff had shown that he was, when defendants went on the land, either actually or constructively in possession of it, the deeds might, if he derived the right to the possession through them, have been admissible for the purpose of showing the extent of his possession, but for no other purpose.—Barnwell v. Stephens, 142 Ala. 609, 38 South. 662. The evidence for the defendants showed that they were in possession of the land, during the period covered bv this controversy, as tenants of John Roberson, who was the husband of Matilda Roberson, and who had not signed the above-mentioned deed to Mrs. Mooty, and that the plaintiff had sued John Roberson in an action of ejectment, and had lost his case. In other words, the plaintiff failed to show that he had ever had possession, actually or constructively, of the land prior [580] to the bringing of the suit, and the evidence of the defendants tended to show that he had not had possession of the land, either actually or constructively, prior to the bringing of the suit. This being the condition of the evidence, the “court committed no error in giving to the jury the affirmative charge, requested in writing by the defendants. The judgment of the court below is affirmed. Affirmed.