Townsend v. Van Aspen

Supreme Court of Alabama

Townsend v. Van Aspen

38 Ala. 572

CourtSupreme Court of Alabama

DecidedJanuary 15, 1863

StatusPublished

Cited by6 cases

This text of 38 Ala. 572 (Townsend v. Van Aspen) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Townsend v. Van Aspen, 38 Ala. 572 (Ala. 1863).

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Opinion

STONE, J.

When this case was before in this court, we said nothing about the sufficiency of the complaint: that subject was not then before us. The present complaint is demurred to; and one of the assigned grounds of demrh’rer is, that the complaint does not aver that the plaintiff, at the time of the grievances, was in the actual possession of the premises. The averment is, that “he was lawfully and peaceably possessed of a leasehold interest, or estate, in the following premises,” &c. Being “possessed of cm mterest'’ in the premises, does not, with reasonable certainty, imply that he was in the actual possession of the premises. If the pleader had owned alease of the premises, and had sub-let to another, and put him in possession, or even if the lessee had never taken possession under his lease, he could say truthfully that he was “possessed of a leasehold interest.” To be possessed of a leasehold interest, is not the synonym of being in actual possession of the premises. — Russell v. Desplous, 29 Ala. 308, and authorities cited.

[2.] The allegation in the complaint, that the defendant “forcibly and unlawfully entered upon,” “and forcibly detains, and unlawfully refuses to quit the premises,” although perhaps fuller than necessary, is nevertheless good. — Code, §§ 2851, 2852.

[3]. We find no defect in the description of the premises, as the same appears in the complaint. From aught that we can know, the sheriff would find no difficulty in recognizing the premises by the description. — Mead v. Daniel, 2 Porter, 86 ; Cunningham v. Green, 3 Ala. 128 ; Huffaker v. Boring, 8 Ala. 90 ; Snoddy v. Watt, 9 Ala. 611.

[4.] There is nothing in the argument, that the plaintiff’s lease had expired before the trial in the city court. If the [575]*575plaintiff was in possession, and the defendant forcibly entered upon him, the plaintiff’s right was complete ; and the question of title was not one of the issues in the cause. Code, § 2859.

For the error above pointed out, the judgment of the city court is reversed, and the cause remanded.

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STONE, J.

When this case was before in this court, we said nothing about the sufficiency of the complaint: that subject was not then before us. The present complaint is demurred to; and one of the assigned grounds of demrh’rer is, that the complaint does not aver that the plaintiff, at the time of the grievances, was in the actual possession of the premises. The averment is, that “he was lawfully and peaceably possessed of a leasehold interest, or estate, in the following premises,” &c. Being “possessed of cm mterest'’ in the premises, does not, with reasonable certainty, imply that he was in the actual possession of the premises. If the pleader had owned alease of the premises, and had sub-let to another, and put him in possession, or even if the lessee had never taken possession under his lease, he could say truthfully that he was “possessed of a leasehold interest.” To be possessed of a leasehold interest, is not the synonym of being in actual possession of the premises. — Russell v. Desplous, 29 Ala. 308, and authorities cited.

[2.] The allegation in the complaint, that the defendant “forcibly and unlawfully entered upon,” “and forcibly detains, and unlawfully refuses to quit the premises,” although perhaps fuller than necessary, is nevertheless good. — Code, §§ 2851, 2852.

[3]. We find no defect in the description of the premises, as the same appears in the complaint. From aught that we can know, the sheriff would find no difficulty in recognizing the premises by the description. — Mead v. Daniel, 2 Porter, 86 ; Cunningham v. Green, 3 Ala. 128 ; Huffaker v. Boring, 8 Ala. 90 ; Snoddy v. Watt, 9 Ala. 611.

[4.] There is nothing in the argument, that the plaintiff’s lease had expired before the trial in the city court. If the [575]*575plaintiff was in possession, and the defendant forcibly entered upon him, the plaintiff’s right was complete ; and the question of title was not one of the issues in the cause. Code, § 2859.

For the error above pointed out, the judgment of the city court is reversed, and the cause remanded.

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38 Ala. 572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/townsend-v-van-aspen-ala-1863.

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