Petition by appellant, Craig, to set. aside a writ of possession in favor of app ellee, King, against one Sanford Jones, under which he had been dispossessed of lands, arid to have h~inself restored to the oossession of &e
j~rëmi~es. The action of ejectment i~ purely mi~t be in~1ii~ited the i~rt~ in sion. One in possession at' `aiid anterior to the mencement of the suit, cannot be legally ejected unless made a party defendant.-7 Ency Pl. & Pr., 301, 302. Without having been a party, if ejected, he will, be restored to possession on proper application to the court from which the writ of possession issued. "But all the persons entering under or aquiring an interest from, or entering by collusion with the defendant, subsequent to the commencement of the suit, are privies bound by the judgment."Hawes v. Rucker, 94 Ala. 166; Smith v. Gayle, 58 Ala. 600."The priciple is,"-as stated in the case last cited,-"that a party having a distinct possesion of the premises at the commencement of the suit if that possession is to be disturbed by the judgement and writ of possession, must have an opportunity to defend , or he cannot be dispossessed. If he has not such possession-if that resides in the ten, who are made defendants, and pending the suit he aquires possession, he is privy bound by the judgment, and sub ants1899 ;t that on th~ 9th a~ch; ~899, the ap~lie~; King,~1ed hi~ sumtho~is ~nd complaint in ejectment in the circuit c~&irtagailn~'t ~aid Sanford Jones, which came to the hands of the sheriff a,ncl wa~ ex~cutëd, on the. 13th ~Marchi of thiat~yèar~ This date was the comme~e~nent ~f: the Suit.-Oode, § 3268.. v By the ag~eed statenIen~ of facts 4t appears, that at the~ttrne of :the execiXtion of the deeçl~ by S~nfoi~d JoneS~ VOL. 132. such iossession if that resides~in the~tenauts are made defendants and pending the suit he acquires pos session he is a privy bound by the judgment and sub j ect to be dispossess ed by the writ of `habere ` facias.' The title and the right of possession may resfdC in; illin b'tat"he mulst yield~ to the judgthenlt~' land' i~hefi:th~ plain tiff ds put in~ b~sessioii~ re)~Qrt to ins `a~tion~ of eject~ ine1nt.'~ :`~`~ `~ `
It appears from the agi~eed statement of fa~~ts that tlie~ ap~mJ1aut~ Oraig acquit�d his title from SanfOM Jones oh~the 11th. day of Ma~xth~ 1899 ;t that on th~ 9th a~ch; 899 the ap~lie~; King hi~ sumtho~is nd complaint in ejectment in the circuit c~&irtagailn~'t aid Sanford Jones which came to the hands of the sheriff a wa~ ex~cut�d on the. 13th Marchi of thiat~y�ar~ This date was the comme~e~nent f: the Suit.-Code � 3268.
v By the ag~eed statenIen~ of facts 4t appears that at the~ttrne of :the execiXtion of the dee�l~ by S~nfoi~d JoneS~ *347to the appellant, 'Craig, on the 11th March, 1899, said Craig and Jones were each engaged in moving from- the places they were. respectively occupying, to the-one each was thereafter to occupy, and said Jones, told Craig that he would turn over the, possession of the place to him and he might consider himself in¡ possession; that on the 13Hi of March, the day the summons and complaint of appellee, King, was. served on .said -Sanford Join's, the said Craig had all his corn, fodder, cotton seed, etc., and.all his household and kitchen furniture, except a small, load, moved onto the Jones place, add said Jones had moved off of said place, all his goods and chattels of like character, onto the Craig place, except a small load of his household and kitchen furniture, and on the night of the day the said summons was served on said Jones, .both Craig and Jones stayed with their faa.nilies at. the places from which they were .engaged in moving, and where they had respectively, been living for some months previously; and-at .the, time of the service of the summons, Jones spent the, night of that day in a room of his. house with, .a, remnant of his household goods, and -Craig did the same thing in his house. The next day they finished moving, and each went to the place from which the other had moved; and, as the agreement of facts states, “Craig and his family had not stayed on the place (of Jones) a single night at the time of the service of the summons,' but had remained each night with his family where he had been living for some months, and Jones had not stayed a single night off of the place and was on the place at the time of the service” of the summons on him, and that Craig was not, at that time,' in person on the place. He ivent there, with his family, as appears, the following day, and there reihained until disposséssed by thé sheriff. It wmk fiirther admittfecl, that ’ King had no notice or knowledge,‘until after the.service of"his summons and complaint on Jemes,, of his haying sold the place to Craig, or of .the, moving,of the two parties, and that Craig had. pot lived on o-r been in actual possession of said Jones lands for several months, prior to.the service of. said summons, except as above shown. -
*348It very clearly appears from these admitted facts, that appellant Craig, acquired his actual possession from Jones after the commencement of the suit in ejectment by plaintiff: against Jones, and that this possession did not begin, until after that suit was commenced, and, further, that Jones was the actual occupant of the lands at the date of the institution of said suit. His possession ,before and up to thetime of- the service of the summons, was unbroken and continuous. The fact that he told Craig on the day of the delivery of his deed to him, that he, Jones, “would now turn over the possession of the place to him, Craig, and told him that he may (might) consider himself in possession,.” was not a surrender of the possession, since Jones continued in the actual possession, living in the dwelling house, until the day after the commencement of the suit, and Craig continued to live and be in possession of the other place. The judgment of the court below was. evidently based on this theory, and we approve it.
Affirmed.
Sharpe, and Dowdell, JJ., dissenting.