Bailey v. Blacksher Co.

Decision Date20 December 1904
CourtAlabama Supreme Court

Appeal from Circuit Court, Baldwin County; Wm. S. Anderson, Judge.

Action by the Blacksher Company against Edmund Bailey for forcible entry and detainer. From a judgment in favor of plaintiff defendant appeals. Reversed.

During the trial of the case the defendant offered in evidence a deed from Leatherbury & Patterson, conveying the lands involved in the suit to Caroline Bailey, which deed was dated March 5, 1901, and also a deed from the Blacksher Company to D. D. Hall, giving a quitclaim to the lands involved in this suit, together with other lands. To the introduction of each of these deeds in evidence the plaintiff separately objected. The court sustained each of these separate objections, and to each of these rulings the defendant separately excepted.

Ervin &amp McAleer, Leslie Hall, C.J. Torrey, and F. S. Stone, for appellant.

Stevens & Lyons, for appellee.


The complaint, after amendment, contains four counts. The first three count upon a forcible entry and detainer, and the last upon an unlawful detainer. The plaintiff, if entitled to recover, must do so upon the counts declaring on a forcible entry and detainer, since the testimony fails to show that defendant's entry was by its consent.

On the trial, the plaintiff, a corporation, admitted to be the legal successor of the Dixie Mill Company, after offering evidence that it was, prior to the entry of defendant on the lands in controversy, in the actual possession of another portion of lands described in a deed executed by one Ferguson to the Dixie Mill Company, which also purported to convey the land was permitted to introduce in evidence, against the objection of defendant, that deed, as color of title. In this ruling there was no error. As said in Cunningham v. Green, 3 Ala. 130, "The plaintiff must have proved a possession, either actual, by having the land under his immediate control and dominion; or constructive, by being in possession of a part of the tract under color of title for the whole." Turnley v. Hanna, 82 Ala. 139, 2 So. 483; Bohannon v. State, 73 Ala. 47; Stovall v. Fowler, 72 Ala. 77; Black v. Tenn. Coal, Iron &amp R. R. Co., 93 Ala. 109, 111, 9 So. 537. In the case last cited it is said: "Mere color of title does not draw possession to one who is not in or does not take actual possession of some part of the land conveyed, but possessio pedis of any part of the tract conveyed, in law, is held to be the actual possession of the entire tract. It is not constructive possession, strictly speaking, but actual possession, that a party has under color of title of the premises conveyed. Technically speaking, in legal contemplation there is no such thing as constructive possession under color of title." In Stovall v. Fowler, supra, it was expressly declared that, when there is an entry on land under color of title by deed, in legal contemplation there is "actual possession to the extent of the boundaries contained in the writing, and this though the title conveyed is good for nothing." Of course, the deed in this character of action cannot be looked to for the purpose of determining...

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5 cases
  • Jordan v. Sumners, 5 Div. 56.
    • United States
    • Alabama Supreme Court
    • June 19, 1930
    ... ... Folmar, supra, Farley v. Bay ... Shell Road Co., 125 Ala. 184, 27 So. 770; Dent v ... Stovall et al., 200 Ala. 193, 75 So. 941; Bailey v ... Blacksher Co., 142 Ala. 254, 37 So. 827; Barefoot v ... Wall, 108 Ala. 327, 18 So. 823 ... A ... written lease might be ... ...
  • Marietta Fertilizer Co. v. Blair
    • United States
    • Alabama Supreme Court
    • June 29, 1911
    ...181, 12 So. 454, 39 Am. St. Rep. 45; Ryan v. Kilpatrick, 66 Ala. 332; Smith v. Keyser, 115 Ala. 455, 460, 22 So. 149; Bailey v. Blacksher Co., 142 Ala. 254, 37 So. 827; Baucum v. George, 65 Ala. 259, 268, 269; v. Anderson, 79 Ala. 209, 215; Watson v. Mancill, 76 Ala. 600, 601. See, also, El......
  • Bush v. Thomas
    • United States
    • Alabama Supreme Court
    • May 13, 1909
    ... ... or does not take, actual possession of some part of the ... land." Black v. T. C., I. & R. R. Co., 93 Ala ... 111, 9 So. 537; Bailey v. Blacksher Co., 142 Ala ... 257, 37 So. 827. The evidence in this case was not sufficient ... to show actual possession in the plaintiff. 1 Cyc ... ...
  • McMillan v. Aikin
    • United States
    • Alabama Supreme Court
    • May 15, 1913 actual, not constructive, to the limits of the color. Marietta Co. v. Blair, supra. That was also the language of Bailey v. Blacksher Co., 142 Ala. 257, 37 So. 827, and of some of the cases cited in Marietta Co. v. supra, and the two cases named are referred to by the chancellor as autho......
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