Bradley v. Ballentine

• Decision Date: 14 December 1944
• Docket Number: 8 Div. 297.
• Citation: 20 So.2d 505,246 Ala. 271
• Parties: BRADLEY et al. v. BALLENTINE.
• Court: Alabama Supreme Court

20 So.2d 505

246 Ala. 271

BRADLEY et al. v. BALLENTINE.

8 Div. 297.

Supreme Court of Alabama

December 14, 1944

Rehearing Denied Jan. 11, 1945.

Appeal from Circuit Court, Lawrence County; A. A. Griffith Judge. [Copyrighted Material Omitted]

S. A. Lynne, of Decatur, for appellants.

Finis E. St. John, of Cullman, for appellee.

Defendants' pleas as amended are as follows:

'First. Comes each of the defendants, separately and severally, and for answer to plaintiff's complaint, disclaims as to all lands sued for and described in the complaint, save and except the following to-wit:

"Twenty acres in Section 19, Township 4, Range 8 West, in Lawrence County, Alabama, lying along, adjacent to and North of Buck Bridge road, and being a strip of land of uniform width contiguous to said road throughout its length across said Section.'

'Second. For further plea to the plaintiff's complaint, each defendant, separately

and severally, says, said defendant is not guilty with respect to the following lands sued for, viz.:

"Twenty acres in Section 19, Township 4, Range 8 West, in Lawrence County, Alabama, lying along, adjacent to and North of Buck Bridge road, and being a strip of land of uniform width contiguous to said road throughout its length across said Section.'

'Third. Comes each of the defendants, separately and severally, and for answer to plaintiff's complaint, disclaims as to all lands sued for and described in the complaint, save and except the following, to-wit:

"Twenty acres in North 1/2 of the NE 1/4 of Section 19, Township 4 Range 8 West, in Lawrence County, Alabama, lying along, adjacent to and North of Buck Bridge Road, and being a strip of land of uniform width contiguous to said road throughout its length across said half Section.'

'Fourth. For further plea to the plaintiff's complaint, each defendant, separately and severally, says, said defendant is not guilty with respect to the following lands sued for, viz.:

"Twenty acres in North 1/2 of the NE 1/4 of Section 19, Township 4, Range 8 West, in Lawrence County, Alabama, lying along, adjacent to and north of Buck Bridge Road, and being a strip of land of uniform width contiguous to said road throughout its length across said half Section.'

'Fifth. Comes each of the defendants, separately and severally, and for answer to plaintiff's complaint, disclaims as to all lands sued for and described in the complaint, save and except the following, to-wit:

"Twenty acres in the NE 1/4 of the NE 1/4 of Section 19, Township 4, Range 8 West, in Lawrence County, Alabama, lying along, adjacent to and North of Buck Bridge Road, and being a strip of land of uniform width contiguous to said road throughout its length across said quarter Section.'

'Sixth. For further plea to the plaintiff's complaint, each defendant, separately and severally, says, said defendant is not guilty with respect to the following lands sued for, viz.:

"Twenty acres in the NE 1/4 of the NE 1/4 of Section 19, Township 4, Range 8 West, in Lawrence County, Alabama, lying along, adjacent to and North of Buck Bridge Road, and being a strip of land of uniform width contiguous to said road throughout its length across said quarter Section.'

'Seventh. Comes each of the defendants, separately and severally, and for answer to plaintiff's complaint, disclaims as to all lands sued for and described in the complaint, save and except the following, to-wit:

"Twenty acres in Section 19, Township 4, Range 8 West, in Lawrence County, Alabama, lying along, adjacent to and North of Buck Bridge Road, and being a strip of land contiguous to said road throughout its length across said Section, and bounded on the SW by said Buck Bridge Road, a public thoroughfare and of long standing, and on the North by the North boundary line of said Section 19 and on the East by the East boundary line of said Section 19.'

'Eighth. For further plea to the plaintiff's complaint, each defendant, separately and severally, says, said defendant is not guilty with respect to the following lands sued for, viz.:

"Twenty acres in Section 19, Township 4, Range 8 West, in Lawrence County, Alabama, lying along, adjacent to and North of Buck Bridge Road, and being a strip of land contiguous to said road throughout its length across said Section, and bounded on the SW by said Buck Bridge Road, a public thoroughfare and of long standing, and on the North by the North boundary line of said Section 19 and on the East by the East boundary line of said Section 19."

BROWN Justice.

This is a statutory action in the nature of ejectment brought by the grantee against the grantor to recover possession of a tract or parcel of land situated in Lawrence County, Alabama, and described in count two of the complaint as, 'All of that part of Section 19, Township 4, Range 8, which lies in the North Half (N 1/2) thereof, and North of Buck Bridge Road.'

The defendants demurred to the complaint on the following specific grounds: 'The complaint does not state the number of acres of land sued for. The number of acres of land sued for in the complaint are not averred or shown. The description of the land sued for is indefinite and uncertain. The description in the complaint does not locate the land sued for.' The demurrer was overruled and this ruling constitutes the basis for the first five assignments of error. The description is, ' All of that part of Section 19, Township 4, Range 8, which lies in the North Half (N 1/2) thereof, and north of the Buck Bridge Road,' be it much or little, and is sufficient. Therefore, the court did not err in overruling the demurrer to said count two of the complaint.

The plaintiff's demurrer to Pleas 1st, 2nd, 3rd, 4th, 5th and 6th, as originally filed and as amended, were properly sustained. The description of the land, the subject-matter of said pleas, was not sufficiently specific. Howard v. Martin, 181 Ala. 613, 62 So. 99. Construing the averments most strongly against the pleader, as must be done on demurrer, they do not aver that the twenty acres described was all the land lying north of Buck Bridge Road. Nor do the pleas specifically describe the twenty acres. Moreover, each of said pleas bearing odd numbers disclaim possession, while the pleas bearing even numbers are pleas of not guilty as to the same lands, and are inconsistent and incompatible, and when pleaded together as to the same land the plea of not guilty waives the disclaimer and admits possession, but disputes the plaintiff's title. Bernstein v. Humes, 60 Ala. 582, 31 Am.Rep. 52; McQueen v. Lampley, 74 Ala. 408; Smith v. Eudy, 216 Ala. 113, 112 So. 640. Said pleas of disclaimer were subject to be stricken on motion and the court will not be put in error for eliminating the same on the specific ground of demurrer that they were incompatible with the plea of not guilty. The ruling as to the even numbered pleas is rendered harmless by the fact that the defendant had the benefit of the same under plea eight. Plea seven (a disclaimer of possession) to which the demurrer was overruled was waived by defendants' plea eight, a plea of not guilty, relating to the same land as described in plea seven. Bernstein v. Humes, 60 Ala. 582, 31 Am.Rep. 52.

By the issues formed between the parties, the plaintiff claimed title to the land described in the second count of the complaint, and the defendants plead not guilty, admitting possession, but controverted plaintiff's title. Code 1940, Tit. 7, § 941.

The plaintiff adduced in evidence a deed executed by the defendant Mrs. Tennie Lee Bradley on the first of October 1935, to the plaintiff E. S. Ballentine, conveying to him, among other lands, 'All of Section 19, Township 4, Range 8, which lies in the North Half (N 1/2) thereof, except twenty acres, which is north of Buck Bridge Road,' and also adduced evidence showing that the land in controversy lies in the NE 1/4 of the NE 1/4 and the NW 1/4 of NE 1/4, consisting of 33.47 acres. The evidence also shows without dispute that said deed was executed in consummation of a contract between the parties to sell and convey and to purchase previously executed. The tract of land consisted of 450 acres more or less, located part in Section 18, and part in the North Half of Section 19, Township 4, South, Range 8, West, Lawrence County, Alabama; that aside from the land involved in this suit, the tract conveyed consisted of...