This is an action of forcible entry and detainer brought by appellant against appellees. The statute (section 4271 of the Code) provides that "the estate or merits of the title cannot be inquired into." It has often been pointed out that the purpose of the action is to protect the actual possession of real estate against unlawful and forcible invasion. Hence the rule that:
"The possession at the time of intrusion is the only matter which is permitted to be the subject of investigation. All questions as to the ultimate title or as to the right of possession, as distinguished from the actual possession, are excluded from the jury." Horsefield v. Adams, 10 Ala. 9; Knowles v. Ogletree, 96 Ala. 555, 12 So. 397.
In trials of the title to realty it is often proper, as the cases cited by appellees show, to prove the claim or disclaimer of a party in possession in order to show the intent, where that is material, with which possession is held; this because possession under a claim of title is some evidence of title. Such declarations are admissible in any case, not to prove possession, but as of the res gestæ and explanatory of an actual possession otherwise proved. Declarations as to the source of title are not admitted in any form of action. It follows from these considerations, and from the rule for the exclusion of hearsay, that declarations of the party in possession, or claiming possession, have no legitimate office to perform in the action of forcible entry and detainer. It appears at many places in the record that this rule was not observed in the circuit court. Nor does any reason appear why these errors should not result in a reversal. In a number of instances, to say the least, apt objections were interposed and they should have been sustained.
Defendants were permitted to put in evidence, "simply to show color of title," a deed which had been executed by W. S. White, state auditor, and purporting to convey to their ancestor the land the possession of which was in dispute. The admissibility of this evidence for the limited purpose of showing the extent of the possession claimed by defendants is sustained by the decision in Farley v. Bay Shell Road Co., 125 Ala. 184,27 So. 770. However, the question to the witness Florence as to whether White knew anything about this land, and his answer that he worked the "White place," were irrelevant and probably harmful as tending, in connection with White's deed, to draw the attention of the jury to the question of title. Plaintiff and his predecessor in title had owned the "White place" for many years, and his contention was that for many years his tenants had been in possession of the land in dispute, the "lost eighty," as the witness called it, as a part of the "White place," and defendants here suggest that this evidence was properly received in rebuttal on this point. But it was not made to appear that White's occupancy had any connection with the possession claimed by either plaintiff or defendants, or that he was working the place when he made the deed, nor, even *Page 195 so, can it be supposed that his private interests had any effect upon his official acts as auditor of the state. His deed purported to be a deed of land that had been purchased by the state at tax sale, and he was disposing of it for account of the state presumably, not as he willed, but as the statute directed. Neither his official action in this regard nor the bare fact that at one time he worked the "White place" indicated anything as to the actual possession of the subject of controversy at the time made important by the issue between the parties.
It appeared in evidence without objection or contradiction that the respective parties owned large adjacent tracts of land on either side of the land in controversy, the "lost eighty," and that for many years the parties and their predecessors in interest had been in undisputed possession of their respective tracts. Plaintiff's tract was known as the "White place." Incidentally, almost unavoidably perhaps, it cropped out that the parties on either side claimed to own the "lost eighty." It was matter of dispute, within the proper issues presented by the pleading, whether plaintiff or defendants had been in possession of the "lost eighty" at and before the time of defendants' alleged intrusion thereon. Plaintiff insisted, and adduced evidence tending to show, that he and his predecessors in title had long been in possession of the "lost eighty" as part and parcel of the "White place," and that some time before defendants' alleged intrusion he had put one Long as his tenant in actual possession of the "lost eighty" as part and parcel of the "White place." Defendants, on the other hand, insisted, and brought evidence to sustain their insistence, that Long had been in possession of only a part of the "lost eighty," but that of that part he held possession under them as their tenant. After a while Long, leaving the country, abandoned his possession, whatever it was, and this, we take it, if he had received possession from plaintiff in manner and form as testified by the latter, restored plaintiff's actual possession of the "lost eighty" as a part of the "White place"; his actual possession of the rest of it not being disputed. Otherwise plaintiff had no possession of the 80 in question upon which defendants could intrude. This state of conflict in the evidence is enough to rebut the idea that defendants were entitled to the general affirmative charge, and so to dispose of the contention that errors against plaintiff were of no consequence.
Defendants brought evidence tending to show possession by themselves and C. H. Bishop, under whom they claimed. It was, of course, competent for plaintiff, on the other hand, to show that C. H. Bishop, prior to his death in 1908, held the place under a lease from him, and that afterwards his widow, Mrs. Bishop, mother and mother-in-law of the other defendants, held the land in the same way, and, as a part of this scheme of evidence, to explain the fact that a house had been built on the premises during the time C. H. Bishop was in possession by showing that his (plaintiff's) permission to build had been sought, and that on account of the building Bishop had received a credit on rent alleged to have been reserved by plaintiff. This evidence, along with all the rest tending to show by whom and by what tenure possession had been held prior to the alleged intrusion, seems, in the peculiar circumstances of this case, proper as going to show in whom the possession was at the time when defendants are alleged to have gone on the premises after Long moved out.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.
On Rehearing.