Bailey v. Selden

• Citation: 124 Ala. 403,26 So. 909
• Parties: BAILEY ET AL. v. SELDEN ET UX.
• Decision Date: 21 November 1899
• Court: Supreme Court of Alabama

26 So. 909

124 Ala. 403

BAILEY ET AL. v. SELDEN ET UX.

Supreme Court of Alabama

November 21, 1899

Appeal from circuit court, Marengo county; John C. Anderson, Judge.

Ejectment by W. E. Bailey & Bro. against John A. Selden and wife. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

This was a statutory action of ejectment brought by the appellants against the appellees, John A. Selden and Sallie G. Selden to recover certain lands specifically described in the complaint, and was instituted on July 22, 1896. The defendant J. A. Selden filed the following plea: "Comes the defendant John A. Selden, by his attorneys, and, for answer to plaintiffs' complaint, says that he was not in possession of the land sued for, in whole or in part, at the time of the commencement of this suit; and this he is ready to verify." The defendant Sallie G. Selden filed the following pleas: "(1) Not guilty. (2) For further answer to said complaint, the defendant Sallie G. Selden says that she is in possession of the lands sued for, *** January 8 1897, as the tenant of John H. Minge, and that the said John H. Minge is the assignee with the legal title of their mortgage of the syndicate known as the British & American Mortgage Company, Limited, who held a mortgage from John A Selden dated the 27th day of April, 1892, and maturing November 12, 1896, and that the plaintiffs claim under a second or junior mortgage from the said John A. Selden executed to themselves on the 26th day of November, 1892, in which the first-named mortgage is mentioned and recognized and that the said defendant is ready to verify." The plaintiffs demurred to the plea of disclaimer filed by John A. Selden on the ground "that it fails to aver that said John A. Selden is the owner of said land and has title thereto, and that said land is not in his actual possession but in the possession of his tenant." The judgment entry fails to recite any rulings of the court upon this demurrer. The plaintiffs moved the court for a judgment against John A. Selden upon his plea denying possession of the land sued for. This motion was overruled, and the plaintiffs duly excepted. The plaintiffs also moved the court to strike from the file the plea of the defendant John A. Selden, on the ground that it was not a proper plea, and presented an immaterial issue. This motion was overruled, and the plaintiffs duly excepted. Thereupon the plaintiffs filed the following replication to said plea: "Come the plaintiffs, and, for replication to plea of John A. Selden, say that John A. Selden is now residing on the lands sued for in their complaint, and was at commencement of this suit, and has ever since then resided thereon." To this replication the defendants demurred upon the ground that it presented an immaterial issue, and was not a replication to defendants' plea. This demurrer was sustained. The plaintiffs demurred to the second plea of the defendant Sallie G. Selden upon the grounds that it presented an immaterial issue and was no proper plea. This demurrer was sustained, and thereupon the defendant Sallie G. Selden amended her said second plea by adding thereto the following averment: "And defendant avers that she became the tenant of John H. Minge in good faith, and because he was the owner and holder of the first mortgage on said land, and that said tenancy is bona fide and not a pretense." To the plea as amended the plaintiffs demurred upon the same grounds which were interposed to the original plea. The court overruled the demurrer, and to this plea the plaintiffs duly excepted. To the said second plea the plaintiffs filed the following replications: "(1) That said Sallie G. Selden became the tenant of the said Minge subsequent to the commencement of plaintiffs' suit. (2) That said Minge is not now the holder and owner of said mortgage, but that same has been transferred by him to Mrs. Gholson as collateral security, and it is now the property of said Mrs. Gholson. (3) The plaintiffs join issue on said plea." To the first and second of these replications the defendants demurred upon the grounds that they were not replications to the defendants' plea, and that they presented an immaterial issue. This demurrer was sustained. On the trial of the case the plaintiffs introduced in evidence a mortgage which bore date November 6, 1892, and was executed by John A. Selden and his wife, Sallie G. Selden, to W. E. Bailey & Bro., to secure an indebtedness, and which conveyed the lands involved in this suit. This mortgage contained a power of sale, and provided that the mortgagees could become purchasers at such sale. The plaintiffs then introduced a deed conveying said lands from W. E. Bailey & Bro. to G. B. Johnston. This deed contained the recital that John A. Selden and Sallie G. Selden had executed to W. E. Bailey & Bro. the mortgage on November 6, 1892, as above referred to, conveying said lands; that there had been default in the payment of the debt secured by said mortgage, and that after following out the requirements of the mortgage and the law in reference to advertising, etc., the lands had been sold under the power contained in the mortgage, at which sale "G. B. Johnston, as bidding agent of W. E. Bailey & Bro., was the best and last bidder for said real estate"; and that upon the payment of the amount bid the lands were conveyed to said Johnston. This deed bore date July 1, 1896, and was signed by W. E. Bailey and E. T. Bailey, who composed the firm of W. E. Bailey & Bro., and also by W. E. Bailey & Bro. The signatures of the grantors were attested by two witnesses. The certificate of acknowledgment appended to said deed was dated July 13, 1896, and the certificate of registration of said deed recited that it was filed and recorded on September 24, 1896. Upon the plaintiffs offering to introduce said deed in evidence, the defendants objected thereto upon the ground "that there were attesting witnesses to said deed, and that said witnesses were not present when called on by said plaintiffs to prove the execution of said deed." The court overruled this objection, and allowed the deed to be introduced in evidence, because, as recited in the bill of exceptions, "it was duly acknowledged and recorded within twelve months from its date, and proof by attesting witnesses was not necessary." To this ruling the defendants duly excepted. The defendants further objected to the admission in evidence of said deed, and, after having G. B. Johnston sworn, asked him the following questions: "When was said deed delivered? Was it delivered on or before the day of its acknowledgment?" The plaintiffs objected to said question. The court sustained the objection, and the defendants duly excepted. Thereupon the plaintiffs introduced in evidence a deed from G. B. Johnston to them conveying the same lands. This deed was executed on July 1, 1896, and the certificate of acknowledgment appended thereto bore date July 1, 1896. The certificate of registration signed by the probate judge recited that it was filed for record August 13, 1896. The plaintiffs proved the rental value of said lands, and further proved that the defendants, John A. Selden and Sallie G. Selden, were husband and wife, and lived on the lands sued for when the suit was instituted, and that they had so lived on said lands ever since, and prior to the commencement of said suit; that said John A. Selden, while living on said lands, as just stated, had then in cultivation, and was often seen exercising acts of control over, said lands. One of the witnesses for the plaintiffs testified that John A. Selden was employed by one John H. Minge for other and different lands during the year 1897. This was all the evidence. The defendants introduced no evidence. Thereupon the defendants requested the court to give to the jury the general affirmative charge in their behalf. The plaintiffs then requested the court to allow them to reopen the case, and to reintroduce evidence showing when said deeds were...