After a careful reconsideration of this record, my opinion is that the evidence wholly failed to show that the plaintiff had such actual possession of any definite part of the "lost eighty," or that any one had such possession for him, as that the defendants or any of them could be held to have intruded thereupon, within the purview of our statutes defining forcible entry and unlawful detainer. Code, § 4262; Knowles v. Ogletree,96 Ala. 555, 12 So. 397. The pertinent doctrine of Chastang v. Chastang, 141 Ala. 451, 37 So. 799, 109 Am. St. Rep. 45, set forth in the second headnote, though there stated as applicable to an action of ejectment, is applicable to this character of action where the plaintiff's right to recover essentially depends upon an actual possession upon which the defendants have intruded. In this view the error of the court in permitting the defendants to adduce declarations of C. H. Bishop asserting the source of his claim to the "lost eighty" was innocuous. Bienville Water Co. v. Mobile, 125 Ala. 178,184, 27 So. 781; Adams v. Corona Coal Co., 183 Ala. 127,131, 62 So. 536. The other declarations were clearly within the doctrine of Turnley v. Hanna, 82 Ala. 139, 2 So. 483, a decision that in this connection is, in my opinion, entirely sound.
For these reasons, I would grant the application for rehearing.