Knowles v. Ogletree

• Decision Date: 02 November 1892
• Parties: KNOWLES v. OGLETREE.
• Court: Alabama Supreme Court

12 So. 397

96 Ala. 555

KNOWLES v. OGLETREE.

Supreme Court of Alabama

November 2, 1892

Appeal from circuit court, Russell county; J. M. Carmichael, Judge.

Action of forcible entry and detainer by W. D. Ogletree against John W. Knowles. There was judgment for plaintiff, and defendant appeals. Affirmed.

It appears from the evidence, as disclosed in the bill of exceptions, that for many years previous to the bringing of the action, plaintiff and defendant, or others under whom they claimed, had been in possession of adjoining lots, which were separated by a dividing fence, under titles which referred to the same survey. About the year 1884 the dividing fence disappeared through decay, and the dispute arose between plaintiff and defendant as to the proper location of the boundary line. Some two and one half years before the bringing of the action, defendant, against plaintiff's objection, erected a division fence between the two lots, and the erection of this fence constituted the forcible entry complained of. The evidence on the part of plaintiff and defendant tended to support their respective contentions, but was conflicting as to whether the land sued for was in the possession of plaintiff or defendant before the erection of the fence by the latter. Upon the introduction of all the evidence the court in its oral charge to the jury instructed them as follows: "If the plaintiff had been in actual prior possession of the premises, and for within three years next before the commencement of this suit, and the defendant entered upon them, and the plaintiff signified to the defendant her desire that he should surrender to her the premises, and he declined to do so, this may be considered by the jury in determining whether he unlawfully refused to surrender the premises or not." The defendant excepted to this portion of the general charge, and separately excepted to the court's refusal to give each of the following charges requested by him: (1) "That, if the jury believe all the evidence, they must find for the defendant." (2) "That before the plaintiff can recover in this action it is necessary that she should prove that, after defendant acquired possession of the premises and before the commencement of this suit, she made a demand or request, either written or verbal, that the defendant should surrender the possession of said land to her, and that defendant refused to make a surrender; and, if the plaintiff has failed to prove such demand and refusal, they must find for the defendant.

Lyman W. Martin, for appellant.

John V Smith and Sayre & Pearson, for appellee.

THORINGTON J.

Forcible entry and detainer, as generally defined, is essentially an action given to protect the actual possession of real estate against unlawful and forcible invasion, to remove occasion for acts of violence in defending such possession, and to punish breaches of the peace committed in the entry upon or the detainer of real property. 8 Amer. & Eng. Enc. Law, p 102. Neither the question of title nor of the right of entry or of possession is involved in the issue, the gist of the action being the entry and detainer by force and violence and the ousting from a peaceable possession contrary to law. Horsefield v. Adams, 10 Ala. 9. As defined in this state, since the act of February 13, 1879, (Acts 1878-79, p. 49,) forcible entry and detainer also includes a peaceable entering upon lands, "and then by unlawful refusal, or by force and threats, turning or keeping the party out of possession." Code 1886, § 3380. The unlawful refusal here mentioned, however, has no reference to the question of title. That can no more be inquired into in an action under the statute, since the amendment...