Lacey v. Morris

• Decision Date: 28 October 1926
• Docket Number: 6 Div. 698
• Citation: 215 Ala. 302,110 So. 379
• Parties: LACEY v. MORRIS.
• Court: Alabama Supreme Court

110 So. 379

215 Ala. 302

LACEY v. MORRIS.

6 Div. 698

Supreme Court of Alabama

October 28, 1926

Rehearing Denied Nov. 26, 1926

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action by Eula V. Morris against Joe V. Lacey. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Aird &amp Aird, of Birmingham, for appellant.

Harsh &amp Harsh, of Birmingham, for appellee.

GARDNER J.

This appeal is prosecuted from a judgment, in an action of trespass to certain realty, recovered by appellee against appellant. The real estate consisted of two houses and lots in Jefferson county. No injury is claimed to have been done the freehold, but it was insisted that defendant unlawfully entered upon the premises, and instructed the tenants to pay him the rents, and, at another time, tore off a trespass notice on the porch of one of the houses.

Defendant interposed special pleas to the effect that he was, at the time of the alleged trespass, the owner of the property and entitled to the immediate possession thereof, but demurrer was sustained to these pleas, and the cause tried upon the plea of the general issue.

In counts 1 and 2, the date of the alleged trespass was September 1, 1923, at which time the property was occupied by tenants, each house being rented separately. The houses adjoined (about 50 feet apart), with no fence between, but some evidence of a dividing line. There was a well on the property, used jointly by the tenants of the two houses, and toilet, likewise so used. A careful consideration of the facts, as here disclosed, clearly demonstrates that these tenants were in the exclusive possession of this property on said date, and the mere general expression of plaintiff that "she was in possession of the premises trespassed upon except the two houses" at the time of the alleged trespass, is not to be construed as a denial of the actual facts, as testified to in reference to the possession of these tenants, which are without dispute, but is to be attributed to constructive possession of November 1st, when the evidence tends to show no one was in possession, and some evidence of title in plaintiff.

While title may be and often is drawn in question in actions of this character, yet the gist is nevertheless the injury to plaintiff's possession, and a landlord who has granted this possession to a tenant for a definite term has no immediate right of possession and cannot maintain the action during such term. 12 Michie Dig. p. 294; 26 R.C.L. p. 958; Garrett v. Sewell, 108 Ala. 521, 18 So. 737; Garrett v. Sewell, 95 Ala. 456, 10 So. 226.

Appellee insists the evidence shows she retained certain...