— An action of unlawful detainer can not be maintained in the present case. The defendant is shown to have been placed in possession of the premises sued for, under a contract of purchase from the plaintiff, and is claiming ownership, presumptively, under this written evidence of title. It may be that the legal title of the lands is in the plaintiff, and that he is entitled to recover possession of them, by reason of the defendant’s forfeiture of his right of possession and title, under the express stipulations in the contract of sale and purchase. But, in the absence of all relationship of landlord and tenant, the question involved is necessarily one as to the merits of the title. There is no invasion by the defendant of the prior actual possession of the plaintiff, made wrongful by an unlawful detention after demand in writing. The interest acquired by defendant, under his contract of purchase, was more than a mere “ possessory interest,” within the meaning of the statute defining an unlawful detainer. — Code, 1876, § 3697. It was an equitable title, capable of being perfected into a legal one, by the performance of certain specified conditions. Whether these conditions have been performed, and whether, therefore, the title has become invested in defendant under the contract, may be the very issue for trial in the cause. This would involve a direct inquiry into “ the estate, or merits of the title” which is expressly prohibited by statute, being more properly the subject of investigation in an action of ejectment. Code, 1876, § 3704; Houston v. Fariss & McCurdy, 71 Ala. 570; Beck v. Glenn, 69 Ala. 121; Womack v. Powers, 50 Ala. 5 ; Russell v. Desplons, 29 Ala. 308; Trial of Title to Land (Sedgw. & Wait), § 94.
The demurrer to the complaint was properly sustained, and the judgment of the Circuit Court is affirmed.