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200 Ala. 193

75 So 941

Dent v. Stovall

Supreme Court of Alabama

Decided April 19, 1917

Supreme Court of Alabama · decided 1917-04-19

<p>1. Forcible Entry and Detainer &wkey;>6(2) — Evidence — Admissibility.</p> <p>Under Code 1907, § 4271, providing that in an action of forcible entry and detainer the estate or merits of the title cannot be inquired into, all questions as to the ultimate title or right of possession as distinguished from the actual possession are excluded.</p> <p>[Ed. Note. — For other cases, see Forcible En,try and Detainer, Cent. Dig. § 31.]</p> <p><§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>2. Evidence <&wkey;121(6) — Declarations—Possession of Land — Admissibility.</p> <p>In trials of the title to realty, a party may prove the claim or disclaimer of a party in possession to show the intént with which possession is held; such declarations being admissible as of the res gestae and explanatory of the actual possession otherwise proved.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§. 316, 1117, 1119.]</p> <p>3. Evidence <&wkey;273(2) — Declarations as to Title — Admissibility.</p> <p>Declarations as to the source of title are not admitted in any form of action.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1111, 1112.]'</p> <p>4. Forcible Entry and Detainer <&wkey;29(3) —Evidence—Admissibility.</p> <p>In foi’cible entry and detainer a deed purporting to convey the land in question to defendant’s ancestors is admissible for the limited purpose of showing the extent of the possession claimed.</p> <p>5. Forcible Entry and Detainer <&wkey;29(2)— Evidence — Admissibility.</p> <p>In forcible entry and detainer, where a deed was admitted for the limited purpose of showing the extent of possession, testimony that the grantor had been working the land was irrelevant as drawing the attention of the jury to the question of title rather than possession.</p> <p>[Ed. Note. — For other cases, see Forcible Entry and Detainer, Cent. Dig. §§ 135-139,147.]</p> <p>' 6. Forcible Entry and Detainer <&wkey;34 — Evidence — Sufficiency.</p> <p>Evidence held to warrant general affirmative charge for defendants in forcible entry and detainer suit.</p> <p>[Ed. Note. — For other cases, see Forcible Entry and Detainer, Cent. Dig. § 157.]</p> <p>7. Forcible Entry and Detainer t&wkey;29(2)— Evidence — Admissibility.</p> <p>In forcible entry and detainer, where defendants put in evidence the possession of one under whom they claimed, it was proper for plaintiffs to show that such person took possession under a lease from them.</p> <p>[Ed. Noto. — For other cases, see Forcible Entry and Detainer, Cent. Dig. §§ 135-139, 147.]</p> <p>On Rehearing.</p> <p>8. Evidence <&wkey;273(3) — Declarations as to Title — Admissibility.</p> <p>In an action of forcible entry and detainer, declarations of an alleged tenant in possession claiming to own the property were inadmissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1113, 1114.]</p> <p>McClellan, J., dissenting.</p> <p>©soPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Relies on Humes v. O'Bryan & Washington · Turnley v. Hanna · Ray v. Jackson

Good law ✅— No negative treatment on recordhow we know

Application overruled · Decided 1917-04-19

How this case has been cited

Cited by 13 later decisions — most recently January 1946

13 state decisions

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¶1 On Rehearing.

SAYRE, J.

¶2 On rehearing our attention is called to the decision in Turnley v. Hanna, 82 Ala. 139, 2 South. 483, as an authority against the proposition of the first paragraph of the foregoing opinion. That decision stands alone. In Humes v. O’Bryan, 74 Ala. 71, there cited, the action was on account for goods sold and delivered, and the decision went simply to the proposition that hearsay declarations may be admitted when it is shown, that they were against the interest of the declarant when made, that he had competent knowledge of the facts stated, and that he is since deceased. Section 109 of Greenleaf on Evidence was also cited.' This citation was to some earlier edition, but we suppose the section cited appeared then as it did in the later fifteenth edition, which read as follows:

“In regard to the declarations of persons in possession of land, explanatory of the character of their possession, there has been some difference of opinion; but it is now well settled that declarations in disparagement of the title of the declarant are admissible as original evidence.”

¶3 And, of course, there has been no denial of this proposition. The section concludes as follows:

“But no reason is perceived why every declaration accompanying the act of possession, whether in disparagement of the claimant’s title, or otherwise qualifying his possession, if made in good faith, should not be received as part of the res geste, leaving its effect to be governed by other rules of evidence.”

¶4 But in the sixteenth edition, edited by Prof. Wigmore, the passage last above quoted is omitted with the statement that:

“The author here seems to be referring to a totally .different principle, or perhaps to two, as explained in the ensuing text above.”

¶5 The ensuing text above is as follows:

“But the declarations_ thus usable must be distinguished from certain other kinds of statements, admissible on very different principles, yet having a superficial analogy in that they are declarations about land: (I) If the issue involves prescriptive title and adverse possession, declarations by the possessor may be received. *196 under the verbal doctrine [verbal act doctrine] as coloring his possession; but here it is not necessary that the declarant be dead.”

¶6 And. more that we need not quote. Greenl. Ev. (16th Ed.) § 152 c. (109).

¶7 In Qhamberlayne on the Modem Law of Evidence, § 2606, the author, referring to the doctrine which admits declarations as of the res gestee of possession, says:

“It will be borne in mind … that the more obvious ground of relevancy is the circumstance that the mental state under which the possession is being held is itself a relevant fact, and that the extrajudicial statement seems to be an appropriate way of proving it.”

¶8 This supports the argument of our original opinion in this case..

¶9 In line also with the argument of our original opinion that declarations — and we meant self-serving declarations — are only admissible as explanatory of a possession otherwise shown, this court, all the justices concurring, said in McBride v. Lowe, 175 Ala. 408, 57 South. 832:

“While it is true that statements explanatory of a possession proven are admissible, yet that is a different thing from proving the possession itself by a statement. The fact that McBride said he was in possession would not prove that he was in fact in open, notorious, adverse possession.”

¶10 [8] In addition to repeated statements by' Bishop as to the source of the title claimed by Mm, which were mere narrations of past transactions, and therefore inadmissible (Ray v. Jackson, 90 Ala. 513, 7 South. 747), the court allowed witnesses to testify repeatedly that Bishop, while in possession, claimed to own the property in controversy. Actual possession was1 the • thing in issue. These last-mentioned, declarations did not tend to prove possession, but title only. Upon reconsideration we are still of the opinion ' that the logic of the statute, providing that “the estate or merits of the.title cannot be inquired into,” presents an insuperable ob■stacle to a holding that there was no error in the admission of these last-mentioned declarations. The reporter’s statement of the case in Turnley v. Hanna is unsatisfactory, ■.and it may he that the ruling in that case, 'apparently on the question here presented, was controlled by some consideration that is Inot now clear. But however that may be, we 1 adhere to our former opinion on this point.

¶11 Application overruled.

MAYFIELD and THOMAS, JJ., concur in the opinion. ANDERSON, O. J., and SOMERVILLE, and GARDNER, JJ., concur In the reversal, but hold that the authority of 'Turnley v. Hanna should not be disturbed.
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