Summary
In Zion Star Baptist Church v. Hart, 228 Ala. 24, 152 So. 44, the cases are cited under the earlier statutes, to the effect that written demand for premises is a condition precedent in actions of unlawful detainer and that proof of demand should be by the best evidence; that the notice and demand must show the possessory right and the demand after termination of the possessory interest.
Summary of this case from Garrett v. ReidOpinion
6 Div. 434.
January 11, 1934.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Fred G. Moore, of Birmingham, for appellant.
Under the statute (Code, § 8001) making a written demand for possession indispensable to the maintenance of unlawful detainer, parol evidence of such demand can only be received after a predicate for it has been laid by notice and failure to produce it. Littleton v. Clayton, 77 Ala. 571; Bates v. Ridgeway, 48 Ala. 611; Dumas v. Hunter, 30 Ala. 75; Sov. Camp v. Hoomes, 219 Ala. 560, 122 So. 686; Code 1923, § 7774; King v. Bolling, 77 Ala. 594. The lease not being the foundation of the suit, a sworn plea of non est factum is not necessary. Therefore the burden is upon plaintiff to prove the execution of the lease before its admission in evidence. Code 1923, § 7763; Thompson F. M. Co. v. Glass, 136 Ala. 648, 33 So. 811; Garrett v. Garrett, 64 Ala. 264; Chitwood v. Blackwood, 220 Ala. 75, 124 So. 110.
G. Ernest Jones, of Birmingham, for appellee.
Brief did not reach the Reporter.
This is an action of unlawful detainer under section 8001 of the Code of 1923, and which, among other things, provides that a demand in writing must be made for the premises after a termination of the possessory interest. The making of this written demand is essential as a condition precedent to a recovery, and proof of same should be by the best evidence. Littleton v. Clayton, 77 Ala. 571; Bates v. Ridgeway, 48 Ala. 611; Dumas v. Hunter, 30 Ala. 75. The plaintiff attempted to prove the demand by stating he sent it by a colored boy in his office, but there was no proof that the same was delivered. Nor was any predicate laid for secondary evidence; that is, no demand was made to produce the original. Again, while the plaintiff claimed to have kept a copy of the demand, it was never introduced, so the most that the plaintiff showed was his oral testimony that he made a demand in writing and sent it by hand by a colored boy. The trial court erred in not sustaining the defendant's objection to the plaintiff's testimony as to the demand.
As we understand, this was not a suit upon an instrument in writing so as to make the same admissible in evidence in the absence of a sworn plea denying the execution of same. It is an action for the recovery of the premises, and the trial court erred in admitting the rental contract in evidence without proper proof of the execution of same over the objection of the defendant.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
GARDNER, BOULDIN, and FOSTER, JJ., concur.