Kirkland v. Trott , 66 Ala. 417 ( 1880 )

BRICKELL, C. J.

1. It seems to have been an admitted fact, that Hogan was in actual possession of the premises at the time of his declaration to Trott that he had taken possession as the agent of Kirkland. The declaration was explanatory of the nature and character of his possession, and was admissible as part of the res gestas.—Bliss v. Winston, 1 Ala. 344; Fontaine v. Beers, 19 Ala. 722.

2. The only plea filed was a disclaimer by the defendant of possession of the premises at the time the suit was commenced ; and to the fact of possession the contention in the Circuit Court was confined. To support the action of ejectment, or the corresponding statutory real action, if the fact of possession at the commencement of suit is controverted, it must be shown that the defendant dispossessed the plaintiff, or was in actual possession. — Tyler on Ejectment, 472. Possession may be shown by the declarations or conduct of the defendant; and if, when possession is demanded of the defendant, he refuses to surrender, not placing the refusal on the'ground that he is not in possession, but resting it upon a denial of the right of the plaintiff, this is sufficient evidence of possession.—Doe v. Taylor, 2 Stark. 535. By his own acts and declarations, he induces suit against him, and he can not be permitted subsequently to gainsay them. On the day before suit was commenced, the defendant was in possession ; and if there was a change .of possession, it was after possession had been demanded of him by the plaintiff, and he had refused to surrender it, placing his refusal solely on a denial of the plaintiff’s right and title; saying, through his attorneys, that the plaintiff must pursue his legal remedies. It would be a fraud on the plaintiff, if he was permitted to defeat a suit he had in effect invited, if he was now permitted to deny that he had possession. Fair dealing required him, if he rested his refusal on the ground that he was not in possession, so to have stated.

When the old consent rule in the action of ejectment was of force, the defendant specified in the rule the part of the premises of which he was possessed, and for which he intended to defend. The consequence was, that the plaintiff was often taken by surprise, and his action was defeated by the disclaimer of possession by the defendant. To avoid this inconvenience, the statute now converts the plea of not guilty into an admission of possession, unless the defendant disclaims on the record — states distinctly the extent of his possession, if it is of a part only of the premises. If the disclaimer is. of possession entirely, it can not be accompanied by the plea of not guilty.—Bernstein v. Humes, 60 Ala. 582.

... It is obvious, in view of the undisputed fact, that the defendant did not, when possession was demanded of him, deny, but tacitly admitted that he was in possession, that there is no error in the several instructions given the jury, of injury to him, or of which he can complain. The instruction requested and refused certainly asserts a correct legal proposition, but it could not have been given properly, without explanation; and there is no error in refusing instructions requested, which require explanation to prevent them from misleading the jury.

The judgment is affirmed,