Beasley v. Howell

• Decision Date: 13 January 1898
• Citation: 117 Ala. 499,22 So. 989
• Parties: BEASLEY ET AL. v. HOWELL.
• Court: Alabama Supreme Court

22 So. 989

117 Ala. 499

BEASLEY ET AL. v. HOWELL.

Supreme Court of Alabama

January 13, 1898

Appeal from circuit court, Coffee county; John P. Hubbard, Special Judge.

Action of ejectment by D. D. Howell, administrator, against E. R Beasley and others. From a verdict and judgment for the plaintiff, the defendants appeal. Reversed.

This was a statutory action of ejectment. The action was originally commenced by James W. Clark against E. R. Beasley but upon motion V. J. Holman was made a party defendant. Before entering upon the trial of the cause the plaintiff moved the court to revive the cause as then pending upon the docket in the city court in the name of D. D. Howell, as administrator of the estate of James W. Clark, deceased. The facts upon which this motion was based are sufficiently stated in the opinion. The court granted the motion, and revived the cause as then pending, in accordance therewith and the defendants duly excepted. The defendants then moved to strike this cause from the docket, which said motion was based upon facts which were disclosed upon the hearing of the motion for revivor. The court refused this motion, and the defendants duly excepted. Issue was then joined upon the pleas of the general issue, and the statutes of limitations of 10, 20, and 30 years. The plaintiff introduced in evidence a copy of a patent issued by the United States to James W Clark on September 1, 1853, to the lands involved in this controversy, and then proved the rental value of the lands. The defendants then introduced evidence tending to show that H. T. Wilkinson was the father of Jane Donnell, W. W. Wilkinson, and Teresa M. Milligan, who were his only children; that H. T. Wilkinson was in possession of the lands sued for in this action in the year 1859; that Clark, the plaintiff's intestate, had had possession of the lands just prior to that time, and told the witness who was testifying that he had sold the land to Wilkinson; that Wilkinson remained in possession until his death, which occurred in the year 1873 or 1874. The defendants then offered in evidence several warranty deeds, from different grantors, conveying the lands here sued for, the parties and the dates to which deeds were as follows: First, a deed from W. W. Wilkinson and wife to Teresa M. Milligan, dated April 22, 1875; second, a deed from Jane Donnell and Thomas Donnell, dated March 26, 1878; third a deed from W. W. Wilkinson and wife to Charles Wilkinson, dated August 23, 1887; fourth, from Charles Wilkinson to V. J. Holman, dated August 25, 1885; fifth, Teresa M. Milligan to said V. J. Holman, dated April 20, 1887. It was shown that the land sued for was intersected by a road, and that on one side of the road were houses which were occupied by persons who had lived upon the land, and on the other side were some cleared lands, which had been cultivated. There was evidence introduced in behalf of the plaintiff and the defendants, respectively, tending to show that the possession of the land from the time of this entry down to the present time was by the tenants of the plaintiff's intestate, on the one side, or by persons who derived their title or right of possession to the land by mesne conveyances, or by renting, from H. T. Wilkinson. It was also shown that Mary Wilkinson went into possession of the land as the tenant of Mrs. Milligan, but that, after having occupied the place for a short time, she abandoned possession, without the knowledge of Mrs. Milligan, in or about the month of May of that year, and that the place remained unoccupied until some time in the fall. Abraham Chandler, a witness for the plaintiff, testified that he knew Henry T. Wilkinson, in his lifetime, and James W. Clark, in his lifetime, and that he was acquainted with the lands involved in this suit, which were known as the "Clark Place." The plaintiff then asked the witness the following question: "Did you hear H. T. Wilkinson, about the year 1873, say whose place the Clark place was?" The defendants objected to this question upon the ground that it called for illegal and irrelevant evidence, and because it did not appear that said Wilkinson was in possession of said place. The court overruled the objection, and the defendants duly excepted. Upon the introduction of Jim Boyett as a witness, he testified that his father, J. L. Boyett, was in possession of the place in the year 1884. Thereupon the plaintiff asked the witness to state how, or from whom, J. L. Boyett got possession of the place. The defendants objected to the question upon the grounds that it called for illegal and irrelevant evidence, and for the conclusion of the witness, and mere hearsay evidence. The court overruled the objection, and the defendants duly excepted. The witness replied that J. L. Boyett made a trade with W. W. Wilkinson, to buy the place, and went into possession under such agreement. The other facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the following written charges: (1) "The burden of proof is upon the defendants to reasonably satisfy the jury that H. T. Wilkinson's possession was an adverse possession." (2) "The burden is upon the defendants to reasonably satisfy the jury that the possession of Mrs. Milligan was an adverse possession." The defendants separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges requested by them: (1) "If the jury believe the evidence, the verdict will be for the defendants." (2) "The court charges the jury that if Mary Wilkinson moved on the place in 1880, and vacated a few months afterwards, and Mrs. Milligan secured another tenant within a reasonable time, then the continuity of possession was not broken." (3) "If the jury are reasonably satisfied from the evidence that Mary Wilkinson entered into possession of the land as the tenant of Milligan, under agreement to pay rent, and did plant and raise any crop upon the place, but left the place without the knowledge or consent of Milligan, and left the crop upon the place, and Milligan put another tenant on the place as soon as it was ascertained that Mary Wilkinson had moved off, and within four or five days after she moved off, then the circumstances would not, as a matter of law, necessarily break the continuity of Milligan's adverse holding, if she was in the adverse possession, under color of title, of the land sued for." (4) "If the jury find from the evidence that during the years '80 and '81 Mrs. Milligan rented the lands to tenants for these years, and if they further find that tenants failed to cultivate said lands for said years, the defendants are not responsible because of that failure of Mrs. Milligan's tenants. The place being rented to tenants for these years, the tenants could cultivate the lands, or not, just as the tenants pleased, during these years. If her tenants failed or refused to make a crop, that fact alone would not break the continuity of Mrs. Milligan's possession, because the tenants could or could not make a crop, just as they pleased.'' There were verdict and judgment for the plaintiff. The defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

M. E. Milligan, for appellants.

P. N. Hickman, for appellee.

BRICKELL C.J.

This was a statutory real action, originally instituted by James W. Clark against appellants, in the year 1890, in the circuit court of Coffee county, to recover certain lands situated in said county, together with damages for their detention. The principal question involved in the appeal is whether the action, which upon the death of the original plaintiff had been revived in the name of the administrator of his estate appointed by the probate court of the county in which the land is situated, can, upon the resignation of such administrator, be revived and prosecuted in the name of an administrator subsequently appointed by the probate court of another county, of which the deceased was a resident at the time of his death, but in which he left no assets. The facts are that said Clark died intestate in December, 1893, in Butler county, where he then resided; leaving no assets in said county, but claiming to own the lands in controversy, in Coffee county. In July, 1894, letters of administration on the estate of decedent were granted by the probate court of Coffee county to D. D. Howell; and at the ensuing term of the circuit court this cause was revived in his name, as such administrator. Subsequently, in May, 1895, said Howell reported to said probate court that no assets of the estate had come into his possession, and resigned the trust; and an order of court was entered, accepting his resignation, and discharging him from further liability. In July, 1895, he applied to the probate court of Butler county for letters of administration on the estate, and the same were granted and issued to him, and he qualified as administrator under said appointment. Before entering upon the trial of the cause the above facts were stated to the court, and admitted by the defendants to be true; and a motion was made to revive the action in the name of D. D. Howell, as administrator, which motion was resisted by the defendants, who moved to strike the cause from the docket. The motion to strike was refused, and the cause was...