Barefoot v. Wall , 108 Ala. 327 ( 1895 )

COLEMAN, J.

The present suit was instituted by the appellant to recover possession of a parcel of land held by the defendant. The action is for an unlawful detainer. Ordinarily to authorize a recovery in this action, the plaintiff must show previous possession, but when the occupant enters upon possession as a tenant, or being in possession attorns to one, who claims the possession, such tenant, if he continues in possession obtained by attornment or promise to pay rent, no fraud having been practiced on him, cannot deny the previous possession of the person to whom he attorned, or promised to pay rent, or the right of the landlord to the possession. Nor is it permissible for the tenant, when sued for an unlawful holding over, after the termination of his estate, acquired from the plaintiff, without first surrendering possession to his landlord, to introduce evidence that he obtained possession from a third person and held it under such rental agreement. If the jury had found from the evidence that the defendant entered upon or held possession, under these circumstances, from plaintiffs, then they should have been instructed to disregard the evidence of Barnes and other witnesses, which tended to show a leasing from Barnes, or a holding of his own right.

The testimony of plaintiff and his witnesses and defendant and his witnesses was in direct conflict, and the jury alone were competent to determine the truth of the controverted facts. The testimony of the plaintiff tended to show a prior actual occupancy and cultivation of the land by him, the entry of defendant, who was the son-in-law of plaintiff, by his permission, the continued occupancy under such permission, notice to defendant, that he must pay rent, his repeated promises to pay rent to plaintiff made within less than three years, as shown by different witnesses. If the jury should find this evidence to be true, the statute of limitation of three years did not bar the action, and the plaintiff would be entitled to recover. — King v. Bolling, 77 Ala. 594.

On the other hand, if the jury should find that the defendant at no time held possession under the permission of the plaintiff, and did not agree to pay the plaintiff rent for the land, or that the statute of limitation of three years had effected a bar to the action as provided in section 3390 of the Code, the plaintiff could not recover. The evidence on these questions being in direct conflict, it was error for the court to give the affirmative charge for the defendant. Titles cannot be enquired into in this action. It is somestimes permissible to introduce written evidence of title or color of title in tbe action of unlawful detainer, not for tbe purpose of showing title to tbe land, but to show tbe extent of actual possession claimed, as where under color of title a person is in actual possession of a part, tbe possession extends to tbe limits described in the deed or instrument conveying color of title. — Turnley v. Hanna, 82 Ala. 139. The plaintiff did not state for what purpose be proposed to introduce bis tax deed, nor do we decide that the facts authorized tbe introduction of tbe tax deed for any purpose. Tbe court did not err in sustaining the objection to this evidence, as offered by tbe plaintiff.

Reversed and remanded.