Fowler v. Pritchard

SIMPSON, J. — This was originally an action before a justice of the peace, brought by the appellants against the appellees for forcible entry and detainer and' unlawful detainer. The defendants (appellees) filed their petition in accordance with section .2147 of the code of 1896, and the case was removed to the circuit court. The first assignment of error insisted upon is that the court erred in overruling a motion made in the cir — 268 — cuit court by the plaintiff to try first the issue made up as to whether the entry of the defendants upon the lands sued for was by force, “before any inquiry is had * * as to the respective strength of the legal title, of the plaintiffs or defendants.” Section 2147 gives the defendant the right to have the case removed to the circuit court, by making the affidavit stating “that the defendant entered upon the land sued for peaceably and under claim of title thereto, and not under claim of any agreement contract or understanding with the plaintiff, or those under whom he claims, and that the petitioner bona fide desires to contest with plaintiff the title to said land.” Section 2148 provides for the removal of the case into the circuit court on petitioner entering into bond to pay costs and damages. Section 2149 provides that “on the trial” of such cases “the plaintiff must recover on the strength of his legal title, as in statutory action in the nature of an action of ejectment, unless he can prove that the defendant, or those under whom he claims, entered on said lands under some contract or agreement between plaintiff or those under whom he claimed, or by use of force, in which latter case no inquiry can be had as to the respective strength of the legal title of the plaintiff or defendant.” There is no requirement in the statute for a separate trial on the single issue of force vel non before going into the question of title; but, on the contrary, the statute speaks of but one trial, thus: “On the trial” the plaintiff must recover on the strength of his legal title, “unless he can prove,” etc. In other woids, it is simply a question of proof on the same trial. We cannot see anything in the statute- which gives to either party the privilege as a matter of right to demand that there be a separate trial on each issue. That matter can be regulated by proper instructions to the jury. The argument as to the inconveniences'resulting from trying both issues in one case addresses itself more particularly to the legislature than to this court. The statute seems to provide for only one trial, and such cases seem to have been heretofore tried in that way. —Matton v. Moog, 121 Ala. 303, 25 South. 583; Fearn v. Beirne, 129 Ala. 435, 29 South. 558. — 269 — As to tbe exclusion of the memorandum of service as to the defendant Laura Fowler, without referring to other reasons, the exclusion was without injury, as the jury by their verdict found that the entry was not by force, or under any contract' or agreement with the plaintinff. Consequently, it is immaterial, whether the notice to quit was served on Laura Fowler. There ivas no error in the refusal of the court to allow the question as to what the witness Broadus said, as there is no pretense that he had anything to do with the entry, but came' there after the parties had entered. It will he observed that the issues in this case áre not exactly the same as if the action was tried regularly under section 2126 of the code of 1896, for that section defines what forcible entry and detainer is, and includes therein, not only the forcible entry, but also a peaceable entry followed- by an unlawful refusal by force or threats, while section 2149 states that the plaintiff must recover on the strength of his legal title, unless he can prove that the defendant entered “under some contract or agreement between the plaintiff, or those under whom he claimed, or by some use of force.” So that the only issue is as to the manner of his entry, and not as to how he held possession after he had entered. As to charge 7, the plaintiffs, not having called attention to the “inadvertence,” cannot complain of it now.—Barnewall v. Murrell, 108 Ala. 366, 18 South. 831. The several assignments of error based on the admission of testimony under the ejectment alternative of the case are shown by what has been said in the first paragraph of this opinion to be without merit. There was no error in the overruling of plaintiff’s objection to the question to the witness Cornelius Fowler as to what the circumstances were under which the deed was made. There was no motion to exclude the answer to the question. There was no error in sustaining the objection by defendants to the introduction of a conversation between the witness Mrs. Daisev Norris and the Malones, as such conversation with a third party could have no legal bearing on the issues in this case. The ground of objection by'the defendant to the question to the witness Irene Prichard: “Did you -not institute a suit for — 270 — this property through Mr. Faith in the chancery court in 3897?” to wit, that the record was the best evidence, was not sufficient to authorize the exclusion of the evidence, as it was a mere collateral matter, and for certain purposes the mere fact that a suit was brought could be proved otherwise than by the record.— Griffin v. State, 129 Ala. 93, 29 South. 783; Allen v. State, 79 Ala. 34. But the matter inquired of was irrelevant to the issues in this case. The fact that a previous suit had been brought for this property did not have bearing upon the forcible entry or on the title to the land, consequently. the court cannot be placed in error for excluding the testimony. Charges 3 and 2, requested by the plaintiffs, were properly refused. Said charges present no question involved in either of the issues presented in this case, to-wit: First, whether the defendants entered upon the possession of the plaintiffs by force; second, as to which party had the legal title to the land, or was entitled to the possession thereof. The court properly refused to give the general charge requested by the plaintiffs. As there was conflict in the evidence and upon the facts, as detailed by the witness ,this court cannot say that there was an entry by force; Nor can we. say as a matter of law that the defendants entered under or by collusion with the. tenant, as some of the evidence tends to show that they did not enter under or by collusion with the tenant, but simply remained in the house after the tenant left. Charge 4, requested by the plaintiffs, was properly refused. The mere opening of a gate on entering premises is not such force as in law would constitute a forcible entry.—19 Cyc. 1334, 13.36; 33 Am. & Eng. Ency. Law, 76.1. The definition of forcible entry and detainer given in section 2126 of the code of 3896 requires more than a mere opening of a door to constitute that offense, and under section 2149 the distinction was drawn between a peaceable entry and an entry by force, and the burden is on the plaintiff to show that the defendant entered by force. The word “force” carries with it necessarily the idea of violence exercised, and it may include a putting-in fear by threats; but it certainly cannot include a — 271 — mere entry by the ordinary means of entrance without any breaking and without any threat of violence to the person. Charge 5, requested hy plaintiff, ivas abstract, as there was no evidence that any part of the consideration of the deed was the future support of John Fowler. Consequently the court cannot he placed in error for refusing to give it. There ivas no error in the refusal of the court to give cliaige 6, requested by the plaintiff. This is not a suit to set aside a deed as fraudulent, and, even.if the principle invoked by the appellant was applicable, there is no hypothesis of knowledge of the fraud. If the intention of the framer of the charge was to claim that the plaintiffs had acquired title by ten years’ adverse possession, the facts necessary to constitute adverse possession should have been stated in the hypothesis. If the defendants merely remained there as the guests, either invited or permissive, of the Malones, and only took possession the next morning after the tenancy had expired and the tenants moved out, then the intrusion was on.the possession of plaintiffs. Charge A and B, given at the request of the defendant, were properly given. The statute of limitations could not run against Jolin Fowler during the period of his disability.—Taylor v. Forsey, 56 Ala. 426, 438. The decisions referred to by counsel for appellant, to the effect that a. void deed may furnish color of title, have no reference to the question of capacity of the person against whom the adverse possession is claimed to run. The case of Riggs v. Fuller, 54 Ala. 141, does not by any means assert the doctrine that the statute can run against the party who is under the disability, so that the period may expire during the disability, but only that the statute is not suspended during the disability, so as to give him the entire ten years after it ceases, but that only “three years shall remain to the person laboring under them after their removal.”—Page 148 of 54 Ala. In ether words, he is protected during the disability and for three years thereafter. Even if it be admitted that the effect of the statute would be to give to the person who succeeds to the interest of the infant or — 272 — non compos the same time which he would have, yet in no case could the time be shorter than the ten years, and in this case the proof is very meager as to the adverse character of the possession, and does not run back further than to June, 1895, while the proof shows that the defendants entered November 1, 1904. The judgment-of the court is affirmed. Weakley, O. J., and Tyson and Anderson, JJ., concur.