
    Mallon v. Moog.
    
      Action of Forcible Entry and Unlawful Detainer.
    
    1. Forcible entrg and detainer-, after acquired title not sufficient to convert to ejectment. — To entitle a defendant against whom an action of forcible entry and unlawful detainer is pending before a justice of tbe peace, to tbe benefits conferred by tbe statutes (Code, § 2147) of removing tbe cause to tbe circuit court and of there having the same tried as an action in the nature of an action of ejectment, the claim of title set up by him is not sufficient if it is an after acquired title — it must " '' 'have existed' at the time of the' entry, and " he must' have ' entered peaceably under it. ' ‘
    2: Same; plaintiff dispossessed by force not required to prove title. The plaintiff to a case of- forcible entry which is removed to : -the circuit court under- our statutes providing for .the removal ,. .of. such causes before trial nad before the justice of the. peace, , ,,. is not required to pr.ove his title to the land in controversy if the defendant, dispossessed him by the use of force — the entry ,; by the defendant must have been without tbe “use of force.”
    3. Forcible entry; what is. — If the plaintiff in forcible entry had the land enclosed by a wire fence and the defendant took it ' away and erected a plank fence ¿round the land, this was such force as would' relieve the plaintiff of the necessity of ■ ' proving his titles when the case is carried to the'circuit court to be tried under the statute as an action in the nature of an ■ action of ejectment. .
    ■ Appeal from tlie Circuit Court of Mobile. ■
    Tried.'before the Hou. William S. Anderson.,
    The facts of this case are stated in the opinion.
    McCarren & Lewis, for appellant.
    — The appellant entered on.the land in quiet peaceable manner. In Mo-Ganegal v. Walker, 23 Ala. 361, the court say: “The bare removal of a fence if the defendant had entered peaceable would not convert his entry or detainer into a forcible one.”
    R. T. Erwin, contra,
    
    cited' Dunton v. Keel, 95 Ala. 162; State v. Posey, 79 Ala. 45.
   DOWDELL, J.

— This was an action of forcible entry and unlawful detainer brought by the appellee, Del-phine Moog, against the appellant, Prank Mallon, in the justice court in the city of Mobile on the petition of the defendant Mallon under the provisions of sections 2147-8-9 of the Code of 1896. If the cause had been carried to the circuit court by appeal from the judgment of the justice of the peace, it would need no argument to demonstrate •that the-rulings of the'circuit court on the trial in that court were free from error. But as tbe removal of tbe cause was bad under tbe provisions of tbe above sections which were enacted into law by a recent act approved February 16th, 1897, tbe case necessarily calls for a construction of those sections.

Tbe effect of tbe act in question, is, in certain cases of forcible entry and unlawful detainer, where tbe possession of tbe defendant is not acquired by virtue of any contract or agreement with tbe plaintiff, or by force, to convert tbe proceedings into statutory action of ejectment. The manifest purpose being, in such cases, to save a multiplicity of suits. Under tbe provisions of the statute tbe sworn petition of tbe defendant for removal, among other statements, must contain a statement, that tbe entry was made peaceably and under claim of title. Without this statement no authority is conferred on tbe judge to order tbe removal. To entitle tbe defendant to the benefits conferred by tbe statute,. it is not enough that bis entry was a peaceable one, but it must also have been made under a claim of title. It is not sufficient if tbe claim is set up under an after acquired title. One who enters, though peaceably, without title or claim of title, is but a trespasser, and tbe statute wqs not enacted for tbe benefit of trespassers. Tbe only evidence offered by tbe defendant of title or claim of title, was tbe title which be acquired long .after bis entry, and even subsequent to tbe removal of tbe cause into the circuit court. The bill of exceptions recites that, tbe defendant, was introduced as a witness in bis own belialf and his testimony tended to show “that be knew tbe land in controversy, and that he bad it enclosed with a fence about May, 1896; that the lot had been enclosed with a wire fence by-Mr. Moogprior to that time; that be removed tbe wire fence which bad been erected by plaintiff and put bis fence in its stead; that the defendant in erecting his fence and removing plain-ti it's fence did it in a quiet, peaceable manner and without creating any disturbance; that be pulled plaintiff’s posts from tbe ground, and together with the wire deposited them on an adjoining lot; that no persons were present except defendant and the men whom be employed to do tbe work; that be does not remember whether any of the wires were broken in removing the plaintiff’s fence.” This was all of the evidence on the part' of the defendant relating to manner of his entry upon the lot. That the’ defendant “had previously claimed to own the lot” does not show that he was claiming to own it at the time of his entry, and that he entered under claim of title.

' Section 2149 of the Code which corresponds with section 3 of the original act, provides: “On the trial of all cas>. s removed under the provisions of the two preceding sections, to the circuit court, the plaintiff.must recover on the strength of his legal title as in a statutory action in the nature of an action of ejectment, unless he can prove that the defendant, or those under whom he claims, entered on said lands under some contract or agreement between [with] plaintiff, or those under whom he claimed, or by use of force; in which latter case no inquiry can be had as to the respective strength of the legal title of the plaintiff or defendant.” Wliat is meant by the expression in the statute, “by use of Uui.” becomes a pertinent question, and we may here observe that it does not necessarily involve a disturbance or breach of the peace. In section 2126 which forms a part of the chapter that embraces the sections under consideration, we find the legislative interpretation of what constitutes force in actions of this character. That section is as follows: “A forcible entry and detainer is, where one, by force or strong hand, or by exciting fear or terror, enters upon and detains lands or tenements in the possession of another; as by breaking open doors, windows, or any other part of a house, whether any person be within or not; by threats of violence to the party in possession, or by such words or actions as have a tendency to excite fear or apprehension of danger; by putting out of doors, or removing the goods or chattels of the party in possession; or by entering peaceably, and then, by unlawful refusal, or by force or threats, turning or keeping the party out of possession.” The forcible entry and detainer may be of lands or tenements. The force used, may be by “breaking open a door, -window, or other part of the house.” The presence or absence of the party in the prior actual possession, at tbe time of sucb entity, is immaterial. We confess we can see no difference in principle between entering upon and breaking down and removing a fence enclosing a vacant lot and detaining tbe same, and in breaking open a door of a vacant bouse and detaining tbe same. Wbat would be termed, tb© “use of force” in tbe latter, would be the same in tbe former. If in tbe present case a bouse bad been upon tbe lot in question, and in tbe absence of the plaintiff, tbe party in actual possession, tbe defendant had entered by “breaking open a door or window,” it would hardly be contended that tbe entry was without tbe “use of force,” though done “in a quiet and peaceable manner.” Tbe plaintiff bad the actual possession of tbe lot, bad enclosed tbe same with a wire fence, tbe law. did not require her to remain in person upon it and stand guard over it. Tbe defendant in her absence entered and removed said wire fence, though “in a quiet and peaceable manner” and replaced it with a fence of bis own, we hold that sucb entry was made by use of force.

The case of McGonegal v. Walker, 23 Ala. 361, cited by counsel for appellant, is distinguishable from tbe present case. In that case Walker, as shown by the statement of tbe facts, tbe plaintiff in tbe forcible entry suit, bad entered upon tbe land which was then in the actual possession .of the defendant, and was proceeding to construct a fence, which tbe defendant tore down and removed, back to near tbe old fence line between the parties — the defendant McGonegal being already in peaceable possession, the bare removal of tbe fence would not constitute forcible entry and detainer; this is as we understand that case. In tbe present case there is no pretense of prior possession on the part of the defendant, or possession, at tbe time the plaintiff enclosed the lot with her own fence. Under tbe facts of this case, according to tbe constructionwe have given tbe statute, tbe legal title could not be inquired into.

We find no reversible error in tbe record and tbe judgment of the circuit court is affirmed.  