Salter v. Fox , 190 Ala. 288 ( 1914 )

de GRAFFENRIED, J.

This was an action in trespass quare clausum fregit. In the case of Southern Railway Co. v. Hayes, 183 Ala. 465, 62 South. 874, this court said: “It is a perfect defense to an action of trespass quare clausum fregit to show that defendant owns the land in question, and that he had, at the time in question, the right to enter; and the fact that he entered by force, over the protest of plaintiff, does not destroy his defense. If he uses more force than is necessary and injures the person or the property of the plaintiff, he is liable in an appropriate action; but that action is not quare clausum fregit.”

(1) In this case there was evidence tending to show that the title of the land described in the complaint was in the defendant; that the possession of the land had been given by the defendant to the plaintiff under such circumstances as to create a tenancy at will; that the defendant had given the plaintiff a proper notice to quit (see McDevitt v. Lambert, 80 Ala. 536, 2 South. 438), but that, instead of yielding possession to the landlord, the tenant held to the actual possession of the land and claimed the land adversely to him. As there was evidence tending to show the. above facts,.this case comes directly within the doctrine above quoted from Southern Railway Co. v. Hayes, supra, and the trial court was not in error in refusing to give, at the written request of the plaintiff, affirmative instructions to the jury in his favor.

2. There are certain assignments of error relating to- the action of the trial court in the admission of certain testimony on behalf of the defendant. Under the authority of Southern Railway Co. v. Hayes, supra, these assignments of error are without merit.

There is no error in the record, and the judgment of the trial court is affirmed.

Affirmed.

Anderson, C. J., and Mayfield, Somerville, and Gardner, JJ., concur.