Jefferson County v. Parker

• Decision Date: 15 May 1924
• Docket Number: 6 Div. 991.
• Parties: JEFFERSON COUNTY v. PARKER.
• Court: Alabama Supreme Court

100 So. 338

211 Ala. 289

JEFFERSON COUNTY v. PARKER.

6 Div. 991.

Supreme Court of Alabama

May 15, 1924

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Action of forcible entry and unlawful detainer by Jefferson County against Monroe Parker. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

See also, 95 So. 364.

W. K Terry, of Birmingham, for appellant.

Benton & Bentley, of Bessemer, for appellee.

SOMERVILLE J.

In this form of action-forcible entry and detainer-the plaintiff cannot recover unless he shows that the defendant has intruded upon his prior possession, either forcibly or by threats, or else peaceably but without the plaintiff's permission or consent. Code, § 4262; Self v. Comer, 166 Ala. 68, 52 So. 336; Victor Realty Co. v Argumanian, 172 Ala. 108, 55 So. 621; Knowles v. Ogletree, 96 Ala. 555, 12 So. 397; 26 Corp. Jur. 830 [§ 66]. Under the statutory prescription, an entry by consent or under contractual agreement is not a forcible entry, actual or constructive, and does not give rise to the action of forcible entry and detainer.

Plaintiff's testimony tends to show that it had established its county convict camp No. 4 on land belonging to the Bessemer Coal, Iron & Land Company; that it was in possession of the land thus occupied under an agreement with said Bessemer Company of indefinite duration; that the occupied area included the house and lot in suit; and that defendant was put in possession of said house and lot by plaintiff, in connection with, and by reason of, defendant's employment by plaintiff as warden of the camp, in order that defendant and his family might reside in the camp while so employed.

Such an occupation created, we think, a tenancy at will by implication. Rutledge v. White, 206 Ala. 329, 89 So. 599. It was more than a mere license, though presumptively it would be terminated, ipso facto, by the termination of the employment of which it was a part, whereupon the continued occupation by defendant would be merely as a tenant at sufferance. We do not think that defendant's occupation was that of a servant merely, leaving the possession in the master-as held under somewhat different circumstances in Kerrains v. People, 60 N.Y. 221, 19 Am. Rep. 158.

Our view of the case is that, if the jury believed the evidence offered by plaintiff as to the manner of defendant's entry, they could not find for plaintiff as for a forcible entry and detainer. If, however, they believed plaintiff's evidence as to plaintiff's prior possession of these premises, and at the same time believed defendant's evidence as to the manner and intention of his entry, they could have so found for plaintiff; the essential factor of an unlawful refusal by defendant to vacate the premises being also found.

The complaint contains no count for an unlawful detainer, but the record very clearly shows that counsel on both sides, as well as the trial court, dealt with the issue as including both forcible entry and detainer and unlawful detainer; the testimony and jury instructions being apt for both forms of action. In such a case, notwithstanding the technical form of the pleadings, this court will, on appeal, treat the case as one embracing both issues.

The trial court erred in refusing to allow plaintiff to show, by its witness Harry, that Harry had authority to demand possession of the premises from defendant, after defendant's employment as warden was terminated; that Harry in fact made such a demand; and that on that occasion defendant told him that he would give the premises up to him as soon as he could get out and get a home. There was error, also, in excluding the testimony of plaintiff's witness Wheeler that he demanded possession from defendant, and that defendant told him that he would get out "just as soon as he could."

If defendant occupied the premises as plaintiff's tenant at will by...