McKeen v. Nelms , 9 Ala. 507 ( 1846 )

COLLIER, C. J.

It is not supposed that in order to constitute & forcible entry in the meaning of our statute, it is necessary for the party entering to employphysicalforce, either to expel the occupant or place himself in possession. Threats, menaces, or other circumstances calculated to excite apprehensions of danger, or manifest a determined purpose on the part of the intruder, which can only be repelled by force, we believe are quite sufficient. [7 Hals. Rep. 202; 8 Porter’s R. 57; 3 A. K. Marsh. Rep. 297; 1 J J. Marsh. Rep. 44; 4 Bibb’s Rep. 426.] The same circumstances of force or violence, that amount to a forcible entry, will also amount to a forcible detainer. [8 Cow. Rep. 226.] And it has been held, that an entry surreptitiously made, if maintained by force, will be considered a forcible entry. [Burt v. State, Const. R. S. C. 489; see 7 Hals. Rep. 202, 266.]

To entitle one to maintain a forcible entry and detainer, he must have had possession when the entry was made. [Minors Rep. 131; 1 Porter’s Rep. 144; 1 A. K. Marsh. Rep, 255; 3 Id. 347; 5 Mon. Rep. 18; 1 Litt. Rep. 226.] So it has been held, that when a tenant is disseized, his landlord cannot maintain a forcible entry and detainer, but the proceeding must be in the name of the tenant. [3 A. K. Marsh. Rep. 128; 6. J. J. Marsh. Rep. 602; 2 Dana’s Rep. 245; 3 Hals. Rep. 48.]

It has been said that one who was neither in possession, nor had title when the premises were entered upon, cannot maintain a forcible entry and detainer, but if entitled to a summary remedy, should proceed for a forcible detainer only. [2 Litt. Rep. 295.] Further, an heir may maintain forcible detainer against the tenant of his ancestor, who holds over, without first reducing the premises to actual possession. [2 A. K. Marsh. Rep. 204; see 2 South. Rep. 513.

We have compared our statute with that of New Jersey, and find it to be almost a literal transcript; they both contemplate force against the possession, and whoever has the possession, unless perhaps he be a mere-agent, is the person supposed to be aggrieved by the forcible entry, and must be the complainant. [Clay’s Dig. 250.]

The facts shown at this trial do not warrant the inference that the tenancy cf Reece had ceased at the time the defendant’s goods were deposited in the house ; such a conclusion is even repelled by the testimony. The tenant, it is true, had conceived the purpose to give up the premises to his landlord, and thus put an end to the lease. He had even began to remove his effects, but the house was still occupied by him — his family and part of his moveables were there ; and this was quite sufficient to make him the actual occupant until he yielded up the possession by removing himself, family and his property from the premises. There is nothing in the terms of the lease, which reinvested the plaintiff with the possession, upon the determination of the tenant to abandon it, or the removal of apart of his goods in furtherance of his intention. And there is no principle of law which will authorize us, to give to a possession, subsequently acquired, a retrospective effect, so as to permit the occupant to maintain a complaint for a previous forcible entry. It results from this view, that the plaintiffs did not show such a state of facts as entitled them to recover in the present proceeding. [See 2, Overt. Rep. 233; 3 Dana’s Rep. 586.]

The sureties in the bond for a certiorari are not liable for costs beyond its penalty. Bat the error of the judgment in this respec-t does not authorize its reversal. It is a mere clerical mistake, amendable on motion in the court below, and will be here amended, as directed by the act of 1824, at the costs of the plaintiffs in error, (Clay’s Dig. 322, § 54,) so that they may be , charged with all the costs, and the sureties only to the extent of the penalty of their bond. In all other respects, the judgment of the Circuit Court is affirmed.