This is a proceeding under Chapter 3, Title 31, Code 1940, which deals with possession of land wrongfully withheld. Sections 35 and 36 of the chapter provide, to state the general effect, that where a tenant shall hold possession of land or tenancy over and beyond the term for which the same was leased to him, and after his right of possession has been terminated, or been forfeited, and the landlord makes an affidavit to that effect, before a justice of the peace or a court of like jurisdiction, and that he has demanded possession of such tenant and that said tenant has refused to surrender possession, may have a writ of possession issued by such justice of the peace or court of like jurisdiction, directed to any lawful officer, sheriff or constable, commanding such officer to deliver to the owner or his representative full and quiet possession of the land.
The execution of this process as provided in Section 37 may be arrested, and prevent his removal if the tenant declare, on oath, that his lease or term of rent has not expired and that he is not holding possession of the premises over and beyond his term, or that his right of possession of the premises has not terminated or been forfeited.
Section 38 provides for service of the writ by leaving a copy of the writ of process and the notice to the defendant at his usual place of abode.
Section 39 provides for a return of the proceedings to the justice of the peace or court issuing the same, and that the fact or facts in issue shall be tried by such justice or court on the third day after delivery to said sheriff or constable of the counter affidavit, Sundays and legal holidays excepted. The sections following provide for judgment and appeal.
This proceeding is purely statutory and sui generis [McAdams v. Beard and Henderson, 34 Ala. 478, 481] and partakes of the nature of unlawful detainer.
On the trial of the case the burden is upon the plaintiff to show that the tenant is holding over and beyond his term for which the same was rented or after his right of possession has terminated or forfeited, and if plaintiff fails to reasonably satisfy the court or jury of these facts, the plaintiff is not entitled to recover. The evidence in this case shows without dispute that such tenancy existed for the year 1940, and that the defendant occupied the premises and during the first part of the term paid $5 per month, and after some repairs were made on the house, the rent was increased to $6 per month. The evidence is further without dispute that the defendant continued to occupy the premises without interruption *Page 258 and the plaintiff collected the rent for the year 1941 up to and including the month of March.
The plaintiff's testimony goes to show that he demanded possession or notified the tenant that he wanted the premises vacated, while the evidence offered by the defendant tends to show that the defendant rerented the premises for the year 1941 at the same rent of $6 per month.
The evidence going to show the lease or renting was ore tenus and the question of its existence and terms was for the jury. If there was such renting for the year or any part of the year 1941, and it was from month to month and less than one year, the only way that the plaintiff could terminate the tenancy would be by written notice as provided by Section 5, Title 31, Code 1940.
If the landlord desired to terminate the tenancy because of a breach of the terms of the lease or a forfeiture of the right of possession, notice as required by Section 6, Title 31, Code 1940, should have been given.
Section 7, Title 31, Code 1940, provides how such notice may be served, written or printed, and Section 8 provides for evidence of such service.
The plaintiff in the instant case, over timely objection of the defendant, was allowed to prove notice by parol testimony, without disclosing the nature or contents of such notice, and without predicate therefor by notice to defendant to produce the writing. In this the court committed reversible error.
Reversed and remanded.
GARDNER, C. J., and THOMAS and LIVINGSTON, JJ., concur.