Wilson v. State , 115 Ala. 129 ( 1896 )

HARALSON, J.

There was no merit in the demurrer of the defendant to the affidavit for arrest. It seems to have been in substantial compliance with the act of February 21, 1893. (Acts-, 1892-93, p. 1046) ; Code of 1886, §§ 4204, 4259.

It is well settled that ejectment is a possessory action, operating only on the possession, and must be commenced against the person in possession; and that a judgment in ejectment against a tenant is not evidence against the landlord, unless he is admitted to defend, or joined with the tenant in making defense, notwithstanding he may be dispossessed by the writ of possession against the tenant, if he receives possession from the tenant pendente lite.—Smith v. Gayle, 58 Ala. 600 ; Hawes v. Rucker, 94 Ala. 166.

The writ of possession, under which the defendant was dispossessed by the sheriff, was issued on a judgment, as recited in the writ, which Samuel T. Alston recovered of W. J. Wilson and others (not including the fendant in this case), in the “circuit court held for the county of Bibb, on the 6th of November, 1896,” for the possession of the lands from which, it is alleged, the defendant was ejected. The defendant in this proceeding was not', so far as is made to appear, a party defendant to the suit of Alston v. W. J. Wilson and others, for the recovery of the possession of the land from them, nor does it 'appear that he received possession from said defendants in that suit, — who were shown to be his tenants, — during its pendency. Without such proof, he was not in privity with, them, was not bound by the judgment, and not liable to ejectment under a writ of possession issued thereon against them. Not being, in any way, a party to that suit, and not having entered into the possession of said lands under or in collusion with the parties sued, said writ of possession was not competent evidence against him in this proceeding. The objections against its introduction were well taken, and should have been sustained.

Nor was the complaint in the. suit afterwards instituted by the defendant, against the sheriff and Alston for damages for having unlawfully dispossessed him under said writ, proper evidence against defendant in this case, and should not have been admitted against his objections as interposed. It was in no way relevant to the issue. Not having been lawfully dispossessed of said lands under said writ, the defendant was not guilty of a violation of the statute under which he is prosecuted, for having re-entered into the possession of the same, without an order of court.

The general charge in favor of defendant, as requested by him and refused, should have been given.

Reversed and remanded.