McGehee's Administrator v. Peterson

57 Ala. 333

Opinion

MANNING, J.

According to the evidence set out in this . record, and the contract between appellant and Boggers, the assignor of appellee, the former was in possession — if not .. exclusively as owner, at least as tenant in common, during the year with the latter.—Thompson v. Mawhinney et al. 17 Ala. 363 ; Bennett v. Bullock, 35 Penn. St. 364. In such a relation of the parties towards each other and to the land, ■.the action of trespass quare clausum fregit could not be maintained by Peterson against McGehee for the acts of ■■‘damage complained of. Peterson was not expelled from the premises; and he was not in exclusive possession of them. If there was any wrong done to him by such acts, his remedy for it was by action on the case.—Bennett v. Bullock, supra; Cabett v. Porter, 8 B. & C. 268; Booth v. Adams, 11 Verm. 156 ; Duncan v. Sylvester, 1 Shepl. (13 Me.) 417.

The judgment of the City Court must be reversed, and -.the cause remanded.