Lorah v. Emerson , 154 Ala. 145 ( 1907 )

SIMPSON, J.

This action was brought by the appellant against the appellee for forcible entry and detainer. The evidence offered by the plaintiff showed that plaintiff built the house and had been in possession of the property in question, being in actual occupancy of it as a “shop,” until about a year before the commencement of this suit, at Avhich time she rented it out for a while, and when the last tenant left she locked the back door, still retaining the key, and fastened the front door by nailing a board across it. The side door was both locked and nailed; and the windows, as well as the doors, were barred, “so no one conld enter without smashing something.” Plaintiff left some of her property in the house, and visited it occasionally (every month or two) to see that it was secure. The defendant was found in possession of the premises on May 14, 1907, and plaintiff went and “asked him out,” or, according to another witness, she ordered him to take his effects and get out. No one seems to have known Iioav the defendant got into possession of the'premises.

These facts Avere sufficient to Avarrant the jury in finding that the plaintiff was in possession of the house.— Davidson v. Phillips, 9 Merg. (Tenn.) 93, 30 Am. Dec. 393, and note: 19 Cyc. 1130, 1133; Ladd v. Dubroca, 45 Ala. 421; House v. Camp, 32 Ala. 542, 547, 550; Clements v. Hays, 76 Ala. 281 (4th headnote), 284. The laAV did not require plaintiff to remain in person in the house and stand guard over it. — Mallon v. Moog, 121 Ala. 307, 25 South. 583. The act of 1879, as embodied in the last clause of section 2126 of the Code of 1896, gives the additional definition of forcible entry and detainer as “entering peaceably, and then, by unlawful refusal, or by force or threats, turning or keeping the party out of possession.” It matters not, then, how the defendant Avent into possession. If he refused to deliver possession when demanded, he Avas guilty, and a failure to give possession on demand is the equivalent of a refusal.— Knowles v. Ogletree, 96 Ala. 555, 558, 12 South. 397. It results that the court erred in excluding the evidence, and also in giving the general charge in favor of the defendant, and in refusing to give the general charge in favor of the plaintiff.

The judgment of the court is reversed, and the cause remanded.

Tyson, C. J., and Anderson and Denson, JJ., concur.