Barnewell v. Stephens

• Decision Date: 13 January 1905
• Citation: 142 Ala. 609,38 So. 662
• Parties: BARNEWELL ET AL. v. STEPHENS.
• Court: Alabama Supreme Court

38 So. 662

142 Ala. 609

BARNEWELL ET AL. v. STEPHENS.

Supreme Court of Alabama

January 13, 1905

Appeal from Circuit Court, Mobile County; William S. Anderson Judge.

Action by George H. Stephens against Louisa Barnewell and others. From a judgment for plaintiff, defendants appeal. Reversed.

This suit was brought by the appellee, George H. Stephens, against the appellants Louisa Barnewell, Susie Johnson, George Barnewell, and Ella Barnewell. The complaint, as originally filed, contained two counts. The first count was for unlawful detainer, and the second for forcible entry and unlawful detainer. The defendants pleaded the general issue, and by special plea set up the statute of limitation for three years. Upon issue joined by these pleas the cause was tried. The tendencies of the evidence are sufficiently set forth in the opinion. During the examination of the witness Austill he testified that during the year 1901 he had been on the land involved in the suit with one George C. Boltz. He was then asked to tell what took place at the time he went there with Boltz. Upon the witness answering that "he made statements to me that made me wish to visit the family down there," and defendants objected to the answer and moved to exclude it; and, upon the court's overruling his objection and motion, the defendants duly excepted. The written demand that was shown by the testimony and admitted by the defendants to have been served upon them was in words and figures as follows: "Mobile, Ala., December 2, 1902. To Louisa Barnewell, Susie Johnson, George Barnewell and Ella Barnewell: This is to demand that you immediately vacate and surrender to the undersigned who is the owner of same, the following described land, to wit: [Describing the land involved in suit.] [[Signed] George H. Stephens, by R. T Ervin, Shelton Sims, His Attorneys." Upon the introduction of all the evidence the defendants requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) The court charges the jury, if you believe the evidence, you must find for the defendants Susie Johnson, Geo. Barnewell, and Ella Barnewell. (2) The court charges the jury, if you believe the evidence, you must find for the defendants. (3) The court charges the jury that if you believe from the evidence that the defendants have had three years' undisputed possession of the property sued for, before the commencement of this suit, they should find for the defendants." There were verdict and judgment for the plaintiff. The defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

L. H. &amp E. W. Faith, for appellants.

Ervin & McAleer, for appellee.

ANDERSON J.

The complaint in this case contains two counts--one for unlawful detainer, and the other for forcible entry. There was judgment for the plaintiff in the court below, and the defendants appeal.

In order for the plaintiff to recover under either count, he must have had a previous possession of the premises. There was no evidence to support the count for forcible entry, as the defendants were in possession at the time the plaintiff's pretended possession began; and, if they were guilty of anything, it was for holding over after the termination of the possessory interest as tenants of the plaintiff.

The undisputed evidence was that the defendants had been in possession of the land for years. But plaintiff claims that they attorned to him, and became his tenants at will, and bases his possession upon said attornment made to his agent, Austill, and which, if true, will give the plaintiff a right of action for an unlawful withholding. Barefoot v. Wall, 108 Ala. 327, 18 So. 823; Anderson v. Anderson, 104 Ala. 428, 16 So. 14; Nicrosi v. Phillipi, 91 Ala. 299, 8 So. 561. It appears from the evidence of Judge Austill that Louisa and Henry Barnewell agreed to become the tenants of the plaintiff, and that they did so in the presence and hearing of all of the members of the family, some of whom are made parties defendant with their mother, Louisa Barnewell. "An unlawful detainer is, where one has lawfully entered into possession of lands or tenements, and after the termination of his possessory interest, refuses, on demand in writing, to deliver the possession thereof to any one lawfully entitled thereto, his agent or attorney." Code 1896, § 2127. In other words, before the suit can be maintained, there must have been a termination of the tenant's possessory interest. If the defendants became the tenants at will of the plaintiff, he had a right to terminate the relationship, but he must have given some notice to them of his desire or intention to terminate, before he had the right to make the written demand for the delivery of the possession. And in the absence of proof showing a termination of defendants' possessory interest, they were entitled to the general affirmative charge. McDevitt v. Lambert, 80 Ala. 536, 2 So. 438.

The rule of law is that by disclaiming and denying the landlord's title, or asserting an adverse claim to title in himself, openly and notoriously, brought to the notice of the landlord, the tenant commits a forfeiture. Generally attornment or delivery of possession to a stranger or adverse claimant, or any act disavowing the title of the landlord, and claiming a superior hostile title or ownership, amounting to a repudiation of the tenancy, will establish a ground of forfeiture. Dahm v. Barlow, 93 Ala. 120, 9 So. 598. There was no legal evidence of acts on the part of the defendants sufficient to create a ground of forfeiture, and thereby terminate their possessory interest. On the other hand, the witness Judge Austill testified that he visited them and told them that he had heard rumors of a hostile claim, and that they then and there denied the rumor and recognized the plaintiff's title.

The plaintiff did introduce in evidence, over the objection of the defendants, a certain record setting up a claim to land by these defendants, as set out in the accompanying map made by one Bart, and which was not competent evidence, as the map described land in an entirely different section from the land sued for in the complaint. But even with the record in, there was no evidence to show a termination of the defendants' possessory interest to the land in controversy by forfeiture or otherwise. The statute requires that a written demand be made after the termination of the possessory interest by any one lawfully entitled thereto, his agent or attorney. The demand in this case was made by Ervin and Sims as attorneys for plaintiff, and there is no question but what the...