Washington v. Spriggs

• Decision Date: 22 October 1925
• Docket Number: 6 Div. 154
• Citation: 213 Ala. 622,105 So. 811
• Parties: WASHINGTON et al. v. SPRIGGS.
• Court: Alabama Supreme Court

105 So. 811

213 Ala. 622

WASHINGTON et al. v. SPRIGGS.

6 Div. 154

Supreme Court of Alabama

October 22, 1925

Appeal from Circuit Court, Tuscaloosa County; Fleetwood Rice, Judge.

Action of forcible entry and unlawful detainer by E.S. Spriggs against Emiline Washington and Eli Washington. Judgment for plaintiff, and defendants appeal. Corrected and affirmed.

Livingston & Smith and Foster, Verner & Rice, of Tuscaloosa, for appellants.

Brown &amp Ward, of Tuscaloosa, for appellee.

BOULDIN J.

The action is for forcible entry and detainer. The property sued for is described as "that certain three-room house upon west half of northeast quarter of section eleven, township twenty-two, range eight, built by Mr. L.E. Patton," etc.

The plaintiff, after testifying the house was built by L.E Patton, and that plaintiff resided upon the tract of lands offered a contract in writing between him and Patton giving the latter the right to build the house, describing the same tract of lands, and providing that, whenever Patton ceases mine operations and discontinues the permanent use of the dwellings for mine operations, all dwellings shall revert to plaintiff, the owner of the surface right of the land. This contract was admitted, over the objection of defendant, but limited to whatever force it might have as to the possession of the house. The contract was admissible in connection with the other evidence to identify the house with the description in the complaint. This, however, was not the purpose for which it was admitted.

In the further progress of the trial it appeared, without objection that Calhoun Land & Mining Company succeeded Patton in the operation of the mines; and the defense set up was that this company was still in possession of the house when suit brought, the defendant having entered under them.

The plaintiff introduced evidence tending to show a permanent abandonment of the mines, the removal of other buildings, the tipple, and track. This line of evidence was later excluded upon motion of defendant as immaterial to the question of actual possession of the house in suit, but the other evidence remained.

While forcible entry and detainer is a purely possessory action, one in which the title or constructive possession as an incident of title is not involved, all evidence of the relations of the parties shedding light upon the actual possession at the time of bringing suit is admissible.

We think the case presented two phases under which plaintiff, on his version of the facts, was the party in possession at the time this defendant entered forcibly over his protest and refused to get out.

First, actual possession of the tract of lands upon which the house was located was admittedly in plaintiff when the house was built to be occupied during mining operations. The contract so admitted, the entry was made pursuant thereto, and Patton and persons holding under him were estopped to question the possession extending to the ground occupied by the house.

If, as plaintiff's evidence tended to show, the house had been abandoned, left with all doors open, unoccupied by persons or property of others after the possessory right of Patton and successors had terminated, the possession of plaintiff was thereby restored, and any later entry would be a trespass. Even muniments of title with which defendant is in no way connected may be offered by plaintiff in this form of action, not as evidence of title and right of possession, but as defining and fixing the boundaries of actual possession. Much more so is a contract showing and admitting the actual possession as between the parties and their privies. On this theory, the contract was properly admitted as going, in connection with the other evidence, to show possession of the house by plaintiff. Dent v. Stovall, 200 Ala. 193, especially par. 7, pp. 194, 195, of opinion, 75 So. 941, 943, we regard as a direct authority. See, also, Farley v. Bay Shell Road Co., 125 Ala. 184, 27 So. 770.

Second evidence that plaintiff, residing within sight of the house and on the same tract of land, seeing it vacated, looked after it, proceeded to make a contract to rent it, and kept such watch over it as to discover defendants moving in, and proceeded at once to interpose objection, if believed, was sufficient to show actual possession in plaintiff. The fact that the doors were left open and unlocked did not prevent possession by actual oversight and control. Possession is a fact to which a witness may testify in general terms. Such testimony is subject to cross-examination to test the truth and accuracy of the statement, and whether the witness knows the import of...