Black v. W.T. Smith Lumber Co.

• Decision Date: 21 November 1912
• Citation: 60 So. 154,179 Ala. 397
• Parties: BLACK ET AL. v. W. T. SMITH LUMBER CO.
• Court: Alabama Supreme Court

60 So. 154

179 Ala. 397

BLACK ET AL. v. W. T. SMITH LUMBER CO.

Supreme Court of Alabama

November 21, 1912

Appeal from Circuit Court, Crenshaw County; A. E. Gamble, Judge.

Action by M. E. Black and another against the W. T. Smith Lumber Company. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

The pleas were: (1) "That the cause of action was barred by the statute of limitation of ten years." (2) "That the defendant and those under whom they claim have been the owners of and in the adverse possession of the saw pine timber 12 inches and up at the stump on the lands described in the complaint, claiming the same as its own, since March 2, 1889, and that, if defendant cut other logs than said pine timber so described, it says it had a right to do so by virtue of a deed to it and those under whom it claimed to said timber, and in said deeds so conveying said timber there was a clause giving the defendants the right to build or construct right of ways for wagons, carts, and tram roads and that, if it cut any other trees than those conveyed to it, it was necessary to do so to enable it to cut and remove said pine timber."

M. W Rushton, of Luverne, for appellants.

F. B Bricken of Luverne, for appellee.

DE GRAFFENRIED, J.

The original complaint consisted of two counts. These counts were for damages for a trespass to realty. To this complaint three other counts in trover were added by amendment, but the court sustained a demurrer to these three additional counts. Thereupon the plaintiffs further amended their complaint by the addition of two other counts in trover. These counts allege the wrongful conversion by the defendant of certain logs, the property of the plaintiffs, and as all of the matters set up in the three counts, to which demurrers were sustained, could have been and were actually litigated by the parties under these last two counts in trover, we will not stop to inquire whether the three counts to which demurrers were sustained were subject to the demurrers which the defendant interposed to them. The plaintiffs were not injured by their absence from the complaint.

2. There were several pleas to the complaint as amended. The general rule is that a plea to the merits of a case must either specifically deny the cause of action set up in the complaint or it must confess the cause of action and set up matters which will legally avoid the cause of action so confessed. A plea must also state facts, and must not present a mere argument. It is also a rule that when a plea is filed as an answer to a complaint as a whole, and the complaint contains several counts, the plea is subject to demurrer, if it is not an answer to each count of the complaint. We refer to these general rules, because some of the pleas to which the plaintiffs demurred offended them, and, as this cause must be reversed on its merits, the objectionable pleas, on the next trial of this case, if one is had, can be so amended as to meet the above well-known requirements.

3. The plaintiffs (appellants here) brought this suit against the defendant, the W. T. Smith Lumber Company (appellee here), to recover damages which the plaintiffs claim that they suffered because said Lumber Company went upon their land in the year 1909 and cut and removed therefrom a lot of pine, oak dogwood, and gum logs. It appears from the evidence that the plaintiffs, in November, 1899, went upon the land in question and resided there until after the alleged cause of action arose. W. T. Shows and wife, on November 27, 1899, executed to the plaintiffs a bond for title to the land, wherein they contracted to execute and deliver to the plaintiffs a conveyance to said land upon the payment by the plaintiffs of certain notes which are described in said bond for title. In the year 1905, all of the notes described in the bond for title having been paid by the plaintiffs, the said Shows and wife executed and delivered to them a conveyance to said lands in fee simple. This conveyance contains a clause expressly warranting that the lands conveyed were free from all incumbrances and that the title conveyed was absolute in fee simple. We find in the record a warranty deed from W. A Johnson and L. M. Johnson to Shows to said land, dated November 27, 1899, and a quitclaim deed from S. C. Freeman to W. A. Johnson and L. M. Johnson, dated January 21, 1897, and which was recorded on January 22, 1897, in the county in which the lands were situated. Freeman was residing on the land when Shows made the above bond for title to the land to the plaintiffs, and, while Freeman testified that he did not remember to have executed the above deed to W. A. Johnson and L. M. Johnson, the deed from W. A. Johnson and L. M. Johnson to Shows recited that it was made on the order of Freeman. Of course, when Freeman executed and delivered the deed to W. A and L. M. Johnson to said land on January 21, 1897, any title that he then had to said land passed into said W. A. and L. M. Johnson, and if they ever reconveyed to Freeman, or if Freeman in any other way again obtained title to the land, the evidence in this case fails to disclose it. Freeman appears to have remained in possession of the land, and there is much to indicate that he continued...