#### Buford, *v.*Christian.

*Trespass Quare Clausum Fregit.*

(Decided Jan. 2, 1907.

42 So. Rep. 997.)

1. *Appeal; Harmless Error; Pleading.*— Auy error in striking special pleas is rendered harmless where the matters set up therein were admitted under the general issue.

2. *Samo; Admission of Evidence.*— Defendant was not prejudiced by the admission of evidence as to his acts on the land after the commencement of the suit where the recovery was for nominal damages only.

3. *Same; Failure to Present Question Below.*— Where instructions, if misleading, could have been cured by requested instructions in the court below, but no such request was made, it was harmless error to give them.

4. *Trespass ;Bight of Action; Plaintiff’s Possession.*— The fact that plaintiff’s tenant, without notice to plaintiff, attorned to the defendant, did not destroy plaintiff’s possession so as to preclude her from maintaining an action of tresx>ass.

5. *Trial; Instructions; Application to Evidence.*— Where the evidence showed that the defendant’s acts were not acts of adverse possession but were purely trespasses, it was proper to refuse an instruction to the effect that there should be a verdict for the defendant if lie was in adverse possession of the lands.

*3446. *Appeal and Error; Trial Court’s Discretion.*— The action of the presiding judge whether he certifies or refused to certify under the provisions of Section 132S of the Code, so as to fix the amount of costs on plaintiff in excess of the amount of judgment or not, is not reviewable on appeal; nor can the action of the judge, as to such matter, be controlled by mandamus.

Appeal from Madison Circuit Court.

Heard before Hon. Paul Speake, Special Judge.

Action by Anna Y. T. Christian against John William Buford. Prom a judgment in favor of plaintiff, defendant appeals.

Affirmed.

This was an action of trespass to realty, and contained a number of counts not necessary to be here set out. It is not deemed necessary to set out the pleas that were stricken, as the matters therein set up were permitted to be introduced under the general issue, which was that the defendant was in the quiet possession of the land on which trespass was charged, and was cultivating the same when the plaintiff entered upon said land, ploughed up, trampled down and destroyed the plaintiff’s crop and erected a wire fence across said land. The evidence tended to support the plaintiff’s contention as to the .ownership of the land, and there was evidence tending to support the defendant’s contention, that at the time of the alleged trespass he was in possession of the land. It was shown that one Baker became the tenant of plaintiff, but without notice thereof, paid the rent to the defendant. The court, at the request of the plaintiff,gave the following charges: 11. I charge you gentlemen, that as a matter of law, James Baker while in possession of the lands in dispute as tenant of Mrs. Troy or the tenant of Mrs. Christian could not surrender possession of the same to the defendant so as to vest him with such possession as would in law defeat this action, without the consent of the landlord from whom he rented the same. Charge 12. I charge you as a matter of law that even if the defendant had made an agreement with James Baker, at a time when he was the tenant either of Mrs. Troy or of Mrs. Christian, whereby the defendant, Buford was to work certain other land in consideration of which the said Baker was to hold and *345work the lands in dispute until tlie termination of the four year lease and suck agreement was oral and not in writing tlie same was void, and even bad sucb agreement been made in writing, between tbe said Baker and tbe defendant, without the knowledge and consent of tbe person from whom Baker rented said lands, tbe same would not constitute a defense to this action or constitute tbe same. Tbe court refused to give tbe following charges requested by the defendant. 2. If tbe jury believe from tbe evidence that tbe defendant was in adverse possession of tbe land described in the complaint,at tbe time of the alleged commission of tbe act complained of, they must find for tbe defendant. 26. If tbe jury believe from tbe evidence that tbe defendant entered into tbe possession of tbe real estate described in tbe complaint some months prior to tbe alleged -trespass and that bis possession ivas adverse- to tbe plaintiff, and that shortly before said alleged trespass, plaintiff entered upon said land by force and destroyed defendant’s crops and erected a fence across bis possession, then I charge you that plaintiff has not shown sucb a possession as would entitle her to maintain this suit. There was judgment for plaintiff and her damages were assessed at $1.00. Tbe plaintiff moved tbe court to certify under tbe statute, that tbe case was in tort, and that tbe jury should have awarded tbe plaintiff more than $20.00 damages, whereupon tbe court made sucb certificate as is required by section 1326 of tbe Code and filed tbe same with tbe clerk of tbe circuit court. Tbe defendant objected to this and upon tbe submission of this cause, filed an application to this court to require tbe presiding judge to strike this certificate. This application was denied.

Cooper & Foster, Petty & Drake, and Henry A. Bradshaw, for appellant. —

Tbe court erred in striking defendant’s pleas 8 and *9.*— Stewart *v.*Tueher, 106 Ala. 322. Tbe court erred in admitting tbe evidence tending to show that defendant removed the fence after tbe bringing of tbe suit and of bis having gathered corn also. These were not admissible in aggravation of dam*ages.*— Stein *v.*Burden, 24 Ala. 130. Tbe court erred in *346refusing charges Nos. 2 and 26 requested for defendant. *—Cooper v. Watson,*73 Ala. 252; *Beatty v. Brown,*76 Ala. 267; *Stewart v. Tucker, supra-; Garrett v. Sewell,*108 Ala. 521. There was no question of vindictive or exemplary damages in this *action.*— Wilkcrson *v. Searcy,*76 Ala. 181; *L. é N. R. R. Co. v. Bizzell,*131 Ala. 429. This being true defendant’s motion should have been granted taxing plaintiff with the cost in excess of one dollar, the amount of the recovery. — Section 1326, Code 1896.

S. S. Pleasants and M. H. Lanier, for appellee. —

If the court committed error in striking pleas 8 and 9, it was error Avithout injury since defendant got the full benefit of these pleas in the testimony and under the general *issue.*— Garrett *v. Sewell,*108 Ala. 521; *American Company v. Rym,*112 Ala. 347; *Lunsford v. Walker,*93 Ala. 38; *Rogers v. Brazzeal,*34 Ala. 514; 36 Ala. 140; 47 Ala. '343; 109 Ala. 307; 111 Ala. 586; 112 Ala. 465. If the court erred in permitting proof of more than one trespass it was error without injury as only nominal damages were *awarded.*— Warrior *C. & C. Go. v. Mabel Mining Co.,*112 Ala. 624; *Garrett v. Sewell, supra.*The evidence was admissible on the question of vindictive *damages.*— Day *v. WoodwoHh,*13 How. 363; 1 Sedgwick on Damages, Sections 361, 3 and 4; *Garrett v. Sewell, su,pra.*

TYSON, C. J. —

This is an action of trespass quare clausum fregit. To the complaint the defendant, in addition to the pled of the general issue, filed two special pleas, numbered 8 and 9, which were, on motion, stricken from the file. The matters set up in these pleas were allowed to be shown under the general issue. It thus being made to affirmatively appear that the defendant had the full benefit of the pleas on the trial, the striking of them, if error, was clearly *harmless.*— L. *& N. R. R. Co. v. Hall,*131 Ala. 161, 32 South. 603.

Since the plaintiff only recovered nominal damages ($1), the defendant was not prejudiced by the admission in evidence of his conduct with respect to the land in controversy after the commencement of the action.

*347“The gist of the action is the injury done to the possession; and, of consequence, to support it the plaintiff must show that, as to the defendant, she had at the time of the.alleged injury rightful possession, actual or corn structive. Of course, if he has title to the property alleged to have been trespassed upon, he has constructive possession of it, unless he has parted with the possession, conferring on another the exclusive right of enjoyment, against whom he has not the right of immediate *possession.”*— L. *& N. R. R. Co. v. Hall, supra.*The evidence clearly authorized the jury to find that the land upon which the alleged trespass was committed belonged to the plaintiff, and that she had either the actual or constructive possession of it at the time the trespass was committed. The affirmative charge requested by defendant was, therefore, properly refused.

The atornment of Baker, while the tenant of plaintiff, to the defendant, without notice to the plaintiff, did not destroy her *possession.*— Fleming *v.*Moore, 122 Ala. 399, 26 South. 174. Charges 11 and 12, given at plaintiff’s request, as we construe them, assert no more than this principle. If it was perceived that they were calculated to mislead the jury, this, could have been corrected by requested instructions.

Charges 2 and 26, requested by defendant, were properly refused. Under the undisputed testimony the landescribed in the complaint belonged to the plaintiff, and the act of possession, relied upon and asserted in these charges as constituting adverse possession, was, under the testimony, a trespass pure and simple. Indeed, the defendant, in his testimony, shows that he does not, and never did, assert any right, title, or claim to any land in section 12, upon which the trespass in the complaint in this case is alleged to have been committed.

The only remaining point insisted upon is that the presiding judge ¡erroneously certified that plaintiff should have been awarded greater damages than $20 .by the jury. This certificate was authorized by section 1326 of the Code of 1896, which is in this language:

> *348“In all actions to recover damages for torts the plaintiff recovers no more costs than damages, where such damages do not exceed twenty dollars, unless the presiding judge certifies that greater damages should have been awarded; and on failure to certify, judgment must be rendered against the plaintiff for such residue.” The action of the presiding judge in refusing to certify, or in certifying, under the statute, is not made revisable under the statute by this court, and, therefore, cannot be reviewed. The exercise of this power or authority committed to him by the statute is similar to that formerly exercised by the judges of the circuit courts in disposing of motions for new tifiáis, which rulings’were not revisable by this court until made so 'by statute. — 2 Brick. Dig. 276, § 1. And at this time the disposition of a motion for new trial by the probate court is not revisable; neither is it in criminal cases, nor is the action of a trial court in refusing to set aside a judgment by *default.*— Hay*good v. Tait,*126 Ala. 264, 27 South. 842; *Beatty v. Hobson,*133 Ala. 270, 31 South. 946; *Walker v. State,*91 Ala. 76, 9 South. 87.

But it is insisted that the action of the judge here complained of will be controlled by mandamus, and to this end a motion is made. We are clearly of the opinion that his act cannot be revised in this way. It can no more be the office of a writ pf mandamus to revise the act of the presiding judge in the matter sought to be revised than it would be the function of the writ to review-his ruling upon a motion for a new trial, if no appeal was provided by statute. The motion must, therefore, be denied.

No error being shown of prejudice to apellant, the judgment appealed from must be affirmed.

Affirmed.

Haralson, Simpson, and Denson, JJ., concur.