Robinson v. Boggan

Mates, J. delivered the opinion of the court. We do not think, under the facts in this case, appellee has •shown that the remedy by unlawful entry and detainer is an available one to him. Before this remedy can be invoked, it must be shown that the party seeking to invoke it has been deprived of the possession of the land sought to be recovered under it. The testimony leaves it very doubtful whether Bog.gan has ever had possession of this property in any way, and ■certain it is that appellee has never had such possession, within the meaning of Code 1906, § 5039, as would entitle him to maintain this suit. The deprivation or withholding of possession, if it be conceded that Boggan is the rightful owner of the land, commenced many years before this suit was instituted, and, if the right to resold to this remedy ever existed, it was long prior to one year before the time when this suit was brought» Reversed a/i%d remanded.