Turnley v. Hanna

• Decision Date: 06 May 1887
• Citation: 82 Ala. 139,2 So. 483
• Parties: TURNLEY v. HANNA AND ANOTHER.
• Court: Alabama Supreme Court

2 So. 483

82 Ala. 139

TURNLEY v. HANNA AND ANOTHER.

Supreme Court of Alabama

May 6, 1887

Appeal from circuit court, De Kalb county.

Action for forcible entry and detainer.

Syllabus by the Court.

A deposition taken in another suit, the parties not being the same, is not admissible as evidence against one who, not be a party to that suit, had no opportunity to cross-examine the witness.

Although the question of title cannot be litigated in an action of forcible entry and detainer, (Code 1876, §§ 3696, 3704,) yet a conveyance to one of the defendants may be relevant and competent as evidence to show the extent of the possession claimed by him.

The declarations of a person in possession of land, showing that he held in his own right, and not as the tenant or agent of another, are admissible as evidence on the principle of res gestae.

A witness may testify that he controlled the lands in controversy for his brother while the latter was absent during the late war; this being in the nature of a collective fact, and the witness being subject to cross-examination as to the particular facts showing his conduct.

A witness cannot be allowed to testify that one of the defendants, on a particular occasion, "seemed disposed to resist if any effort was mae to put him out of possession."

This action was brought by Matthew J. Turnley against A. B. Hanna William H. Holton, S.W. Brown, and Joseph Brown; but the two defendants last named were not served with process, and did not appear. The action was commenced in a justice's court on March 10, 1882, and sought to recover the possession of a tract of land described as the S.W. 1/4 of section 10, of fractional township 4, range 10 E., known as the "Sulphur Springs Place." On appeal to the circuit court, the defendants pleaded "the general issue, in short by consent," and a special plea averring, in substance, that said A. B. Hanna had been in the uninterrupted occupation of the premises for three years next preceding the commencement of the action, and that his estate was still undetermined; and the cause was tried on issue joined on these pleas. On the trial, as appears from the bill of exceptions, the plaintiff introduced evidence which tended to show that he went into the actual possession of the lands in the year 1862, and continued in possession until December 1869, when the defendants turned him out of the possession by force, forcibly taking possession at the same time; that he peaceably regained the possession in July or August, 1871 going into the actual possession by his agent, Alfred Collins, and remaining so for some six weeks or longer, when he was again forced out of possession by the defendants; that said A. B. Hanna, while plaintiff was thus in possession the second time, had brought an action of unlawful detainer against him, through one H. Jordan, the tenant of said Hanna but dismissed that suit, and afterwards took possession by force, as above stated. Plaintiff offered in evidence a bill for injunction filed by said Hanna in the chancery court of De Kalb county, against said M. J. Turnley, Alfred Collins and S.W. Brown, together with the writ of injunction, and a copy of the decree and judgment of the supreme court, which reversed the chancellor's decree, and dismissed the bill. Turnley v. Hanna, 67 Ala. 101. These papers were admitted without objection, except the copy of the judgment of this court, which was excluded on motion of the defendants, and the plaintiff excepted to its exclusion. The plaintiff then offered in evidence the deposition of Mrs. Henrietta Ellis, taken in said chancery suit, accompanied by proof of her non-residence; and he duly excepted to its exclusion on objection by the defendants.

The plaintiff took the deposition of H. Jordan, who testified to the circumstances under which Hanna obtained the possession in October, 1871, in substance as follows: While Jordan was in possession, as the tenant or agent of Hanna, in September, 1871, he left the door opened (or unfastened) one day, and found Collins in the house when he returned; and Collins refused to leave, claiming that the property belonged to him and Turnley, but gave Jordan permission to remove all his articles of property out of the house. In October, 1871, Jordan went to the house, and asked to have the door opened in order that he might take away a barrel of lime; and, when the door was opened, Hanna, who was with him, also entered, and then refused to leave, "saying that he had got possession of his property, and intended to hold it; and he remained in possession until he tore it down and moved it away." The answer of the witness to the first rebutting interrogatory was in these words: "H. retained possession, by refusing to go out, saying that he intended to hold possession; and, when Collins and Jacoway found they could not get him out without using violence, they went off and left him in possession. I had told Hanna that, if he had sense enough to get in when the house was open, he could do so; and he said he would. His intention was not communicated to Collins and Jacoway. They did not willingly leave him in possession. He had a heavy cane in his hand, and seemed disposed to resist if an effort was made to put him put." On objection by the defendants, the court excluded the italicized part of the answer, and plaintiff excepted.

A. B Hanna testified, on behalf of the defendants, that he went into the actual possession of said lands in 1868, and had continued in the actual possession thereof, uninterruptedly, from that time until the...