Barron v. Barron

• Decision Date: 17 January 1899
• Citation: 122 Ala. 194,25 So. 55
• Parties: BARRON ET AL. v. BARRON ET AL.
• Court: Alabama Supreme Court

25 So. 55

122 Ala. 194

BARRON ET AL. v. BARRON ET AL.

Supreme Court of Alabama

January 17, 1899

Appeal from circuit court, St. Clair county; George E. Brewer Judge.

Ejectment by John T. Barron and others against Rebecca Barron and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

This was a common-law action of ejectment. There were three demises in the complaint. One was laid in John T. Barron another, in J. W. Moore, as the executor of W. G. Moore deceased; and the other was laid in the heirs at law of W. G Moore, deceased. There were several parties defendant, but the principal defendants were Rebecca Barron, Mary McFarland M. M. Smith, and N. A. Hood; the other defendants being privies of said Rebecca Barron and Mary McFarland, and holding under and through them. The defendants disclaimed title to an undivided two-thirds interest in the lands sued for, and, as to the remaining undivided one-third, they pleaded not guilty. The substance of the plea in abatement, which was stricken from the file on motion of the plaintiff, is stated in the opinion. On the trial of the cause the defendants introduced evidence tending to establish their title to the property, as follows: One J. S. Clements died in 1870, seised and possessed of the lands in controversy. He left, surviving him, a widow, who, together with his children, continued to reside upon the property. In 1871 said lands were assessed for taxes, as the lands of J. S. Clements; and, default being made in the payment of the taxes for said year, the lands were sold therefor. Subsequently, Mrs. Mary Clements, the widow of said J. S. Clements, redeemed said lands by paying double the amount paid at said sale, and the costs, etc., as required by the statute. In September, 1873, the probate judge of the county of St. Clair, wherein the lands were situate, gave to Mrs. Mary Clements a certificate of redemption of said lands. She thereupon went into possession, and set up an individual claim to said lands. Subsequently, during the year 1873, she sold said lands to Jesse H. Barron, but did not execute to him a deed until the year 1879. Immediately upon the purchase of said lands from Mary Clements, Jesse H. Barron went into the possession thereof, and exercised acts of ownership, claiming the lands as his own. On January 14, 1884, Jesse H. Barron and his wife executed a mortgage upon the lands in controversy to W. G. Moore, to secure the payment of an indebtedness due from him to Moore. In December, 1884, Jesse H. Barron brought an action of unlawful detainer against B. B. Barron, the husband of Rebecca Barron, and Benjamin F. Clements, who was the father of the defendant Mary McFarland. B. B. Barron had gone into possession of a part of the lands as the tenant of Jesse H. Barron, and, while so in possession, he and his wife, Rebecca Barron, set up a claim to said lands. Benjamin F. Clements was in possession of a part of the land, claiming it as his own. In each of the actions of unlawful detainer the plaintiff recovered judgment against the defendants, respectively, and they were ousted under a writ of restitution issued upon said judgment. The mortgage from Jesse H. Barron to W. G. Moore was by the executor of said W. G. Moore (who had subsequently died) transferred and assigned to the plaintiff John T. Barron, the transfer being evidenced by the following indorsement upon said mortgage: "For value received, and without recourse, I hereby assign and transfer this mortgage and the debt it secures to John T. Barron." This transfer was signed, "J. W. Moore, Executor of W. G. Moore, Deceased." Default having been made in the payment of the mortgage debt, the mortgage was foreclosed, under the power of sale; and John T. Barron became the purchaser of the lands in controversy. This sale was made January 16, 1893. The evidence for the defendants tended to show that the lands in controversy belonged to the first wife of J. S. Clements, deceased, and that they were the heirs at law of J. S. Clements' first wife. It was further shown by the defendants that, in 1887, Rebecca Barron and B. F. Clements, whose only heir is the defendant Mary McFarland, brought an action of ejectment against Jesse H. Barron for the lands in controversy, and that they recovered judgment for an undivided two-thirds interest in said lands, with the costs of suit; that, the costs of said suit not having been paid, execution was issued on the judgment, and levied upon the undivided one-third interest adjudged in said suit to have belonged to Jesse H. Barron; that, under this execution, the undivided one-third interest was sold, and the defendant N. A. Hood became the purchaser of said undivided one-third interest. This judgment in the ejectment suit brought by Rebecca Barron and B. F. Clements against Jesse H. Barron was recovered on October 11, 1892, and the sale was made to N. A. Hood on December 12, 1892. It was shown that Rebecca Barron and Mary McFarland, as heir at law of Benjamin F. Clements, in December, 1892, executed a deed to the defendant M. M. Smith, conveying to him an undivided one-third interest in the lands sued for. Upon the plaintiffs offering to introduce in evidence the certificate of redemption of the lands in question, given by the probate judge to Mary Clements in 1873, the defendants objected, upon the grounds that said written instrument was illegal, irrelevant, and incompetent evidence, and that the writing itself showed that it was neither title nor color of title to the lands sued for. This objection was overruled; the certificate was allowed to be introduced in evidence; and to this ruling the defendants duly and separately excepted. One John Thompson, as a witness for the plaintiff, testified that he knew the lands in controversy, and had known them since 1870; that J. S. Clements owned said lands; and that, after his death, his widow and children lived on them; and that, after 1873, Jesse H. Barron claimed title and ownership to said lands. Plaintiff then asked said witness if he did not buy a portion of said lands from Jesse H. Barron in the year 1879. The defendants objected to this question, upon the ground that it called for illegal, irrelevant, and incompetent evidence, the bill of exceptions stating that "no question was raised, because the deed was not produced." The court overruled the objection, and the defendants duly and separately excepted. The witness answered that he did not buy any of the lands in controversy, but that he bought from said Jesse H. Barron about two acres of the original Clements tract. Upon the examination of one Williams as a witness, he testified upon his cross-examination that he took a mortgage from Jesse H. Barron on a portion of said land, which he had acquired from Mary Clements, the widow of J. S. Clements, to secure a loan made by him (Williams) to said J. H. Barron. Defendants objected to this testimony, and moved to exclude it, on the ground that it was illegal, irrelevant, and incompetent. The court overruled each of these objections, and the defendants duly and separately excepted. The plaintiff offered in evidence the records of an action of ejectment brought by B. F. Clements and Rebecca Barron against Mary Clements, the widow of J. S. Clements, on September 4, 1872, which suit was terminated on October 12, 1874, by the plaintiffs therein voluntarily taking a nonsuit. The defendants in the present suit objected to the introduction of the record of said former ejectment suit, upon the grounds that (1) it was illegal, incompetent, and irrelevant evidence; (2) that said records showed on their faces that the parties to said ejectment suit were other and different parties to the parties to this suit; (3) that the uncontroverted evidence in this case shows that Mary Clements was not in possession of said lands on October 12, 1874, when the nonsuit was taken. The court overruled this objection, allowed said evidence to be introduced, and to this ruling the defendants separately excepted. Upon the plaintiff introducing in evidence the mortgage executed by J. H. Barron to W. G. Moore, the defendants objected, and moved to exclude said mortgage, upon the grounds (1) that it was illegal, irelevant, and incompetent evidrence; (2) because the evidence shows that said mortgage debt was fully paid. The court overruled this objection and motion, and to these rulings the defendants duly and separately excepted. Upon the plaintiff offering to introduce in evidence the records of the suits of forcible entry and unlawful detainer, instituted by J. H. Barron on December 4, 1884, against B. B. Barron and B. F. Clements, the defendants objected to the introduction of said records in evidence, upon the grounds that they were illegal, irrelevant, and incompetent evidence, and that the parties to said suits, as shown by the records, were other and different parties from those in the present suit. The court overruled each of these objections, and to this ruling the defendants separately and severally objected. The other facts of the case sufficient to an understanding of the rulings on the present appeal are sufficiently stated in the opinion.

The defendants separately excepted to the following separate portions of the court's general charge to the jury: (1) "If the jury find from the evidence that B. B. Barron went into possession of said lands in 1881, under a lease or as tenant of his son Jesse H. Barron, and that Rebecca Barron entered on said lands as his wife, then any claim of the said Rebecca Barron during said tenancy of her husband, to the lands, which she lived on them with her said husband, he having entered on them under a lease from Jesse H. Barron would not have made a gap or chasm in said Jesse H. Barron's possession while her husband...