Williamson v. Mayer

• Decision Date: 05 January 1898
• Citation: 117 Ala. 253,23 So. 3
• Parties: WILLIAMSON v. MAYER ET AL.
• Court: Alabama Supreme Court

23 So. 3

117 Ala. 253

WILLIAMSON v. MAYER ET AL.

Supreme Court of Alabama

January 5, 1898

Appeal from circuit court, Marengo county; C. K. Abrahams, Special Judge.

Action in ejectment by Mayer Bros. against M. M. Williamson. From a judgment for plaintiffs, defendant appeals. Affirmed.

The defendant pleaded the following special plea: "For further plea in this behalf defendant says that heretofore to wit, at the fall term, 1893, of this court, plaintiff brought his suit against this defendant, as shown by attached copy of summons and complaint, asked to be taken as a part hereof, to recover possession of the land described in his complaint, at which time this defendant appeared by her attorney and filed the following pleas: 'Now comes the defendant in the above-stated cause, and makes the following pleas: (1) In short and by consent, the general issue. (2) The defendant for further plea in this behalf says that the plaintiff's suit is based upon a certain mortgage executed by defendant on the 3d day of March, 1892, to secure a debt therein mentioned; that prior to the commencement of this suit, and prior to the foreclosure of said mortgage, the debt was paid and discharged.' And at the _____ term 189___, of this court, a trial was had on the above pleas the plaintiff joining issue thereon, and it becoming material, and necessary upon said issue, for the jury to determine whether or not this defendant was really indebted to the plaintiffs upon said mortgage, a verdict was rendered in favor of this defendant, and judgment rendered accordingly, a copy of which judgment entry is hereto attached and asked to be taken as a part of this plea. And defendant avers, that the present suit, the parties subject-matter and point in issue are the identical parties, subject-matter and point in issue involved in the former, and defendant avers that there is a valid subsisting judgment in her favor, as to this question and matter, and that plaintiffs rely on, in the present suit, in support of their title, the same identical mortgage given by defendant to plaintiffs upon the land in question, and used in the former trial of this cause; and defendant says the question of payment, vel non, of this mortgage debt was decided in her favor under the issue upon which the former trial was had. Wherefore defendant says plaintiffs should not recover in this suit." The plaintiffs moved to strike this plea from the file, which motion was overruled. Thereupon the plaintiffs demurred to this plea of res adjudicata upon the following grounds: "(1) It shows upon its face that said former action was an action in the nature of an action of ejectment, while this action is an action in the nature of an action of ejectment. (2) Because it does not show that the verdict and judgment in said former action were rendered upon the issue of payment of mortgage debt." This demurrer was sustained, and to the ruling of the court the defendant duly excepted. The defendant then pleaded two pleas, the first of which was the general issue, and the second was as follows: "That the plaintiffs' suit is based upon a certain mortgage, executed by defendant to plaintiffs, and that before the commencement of this suit the debt was fully paid and discharged." To the second plea the plaintiffs demurred upon the ground that it fails to show that the plaintiffs sued in this action as mortgagees, or that said mortgage debt was paid before the foreclosure of this mortgage. This demurrer was overruled. Thereupon the plaintiffs filed the following replication: "Now come the plaintiffs, and for a replication to plea No. 2 of defendant, say: That plaintiffs are not suing as mortgagees in this action, but claim title directly by a deed from Wm. Cunninghame, and that said mortgage mentioned in said plea was foreclosed under the power of sale contained therein, and a deed executed to Wm. Cunninghame, the purchaser at said sale on, to wit, 21st day of August, 1893. That Wm. Cunninghame, the purchaser at said sale, executed and conveyed to plaintiffs by good and sufficient deed the premises here sued for, on, to wit, the 28th day of August, 1893, and that this suit was brought after the execution of both of said deeds." The defendant moved to strike this replication from the file, and duly excepted to the court's overruling his motion. The defendant then filed the following rejoinder to the plaintiffs' replication: "And now comes the defendant and for a rejoinder to plaintiffs' replication says, that there was a mortgage executed by defendant to plaintiffs on the land in suit, and that at the sale under foreclosure of said mortgage Wm. Cunninghame was only a nominal purchaser, and that no consideration was paid by him for the purchase of said lands, but that he only bought in said lands for the express purpose of reconveying to Mayer Bros." The plaintiffs moved to strike this rejoinder from the files, upon the ground that it was immaterial, irrelevant, and frivolous, and because it was a departure from the original defense. The court sustained this motion, and to this ruling the defendant duly excepted.

G. W. Westbrook, a juror, testified upon the voir dire that he was first cousin to defendant's son-in-law, and was excused by the court of its own motion, to which action of the court the defendant duly excepted.

The plaintiffs introduced in evidence a mortgage properly executed to them on the 3d day of March, 1892, by M. M. Williamson and C. E. Suddath, and duly recorded, the granting clause of which contained the words "grant, bargain, sell and convey," and which conveyed the following described lands: "One hundred and sixty acres of land lying and being in Marengo county, Ala., known as the 'Williamson Place,' and bounded on the north by the lands of W. K. Thomas, on the south by the lands of W. S.

Skinner, on the east by the lands of F. H. Skinner & Son, and on the west by the lands of Monday McIntosh."

It was admitted that the mortgage sale was regular. The plaintiffs next introduced in evidence a deed from Mayer Bros. to William Cunninghame properly executed on the 21st day of August, 1893, which conveyed the following described lands: "The N.W. 1/4 of section 22, township 14, range 3 east, in Marengo county, Alabama." The plaintiffs next introduced in evidence a deed from William Cunninghame to themselves, properly executed on the 28th day of August, 1893, which conveyed the following described lands: "The N.W. 1/4 of section 22, township 14, range 3 east, in Marengo county, Alabama." The plaintiffs then introduced a witness, George B. Thomas, who testified that he lived close to Mrs. M. M. Williamson, and was acquainted with the Williamson lands, and knew where they were situated; and that at the time the mortgage aforesaid was executed to Mayer Bros. they were bounded as follows: On the north by the lands of W. K. Thomas and one Skinner; on the south by the lands of Ann Watkins and W. S. Skinner; on the east by the Bradford lands; and on the west by the lands of Monday McIntosh; that Ann Watkins bought her 40 acres of land from W. S. Skinner, and that the Williamson lands were in the N.W. 1/4 of section 22, township 14, range 3 E., in Marengo county, Ala.; that he knew of no other Williamson lands than those where she lived; that Mrs. Williamson had been living on these lands for about 17 years; that the fair rental value of the said lands was $50 or $75 per year. Here plaintiffs rested.

The defendant then offered to introduce in evidence a deed from F. A. Royal and wife to Carroll Williamson and M. M Williamson, properly executed on the 7th day of March, 1870, and conveying the following described lands: "The N.W. 1/4 of section 22, township 14, range 3 east, in ...