Brooks v. Johns

• Decision Date: 08 December 1898
• Parties: BROOKS ET AL. v. JOHNS.
• Court: Alabama Supreme Court

24 So. 345

119 Ala. 412

BROOKS ET AL. v. JOHNS.

Supreme Court of Alabama

December 8, 1898

Appeal from Cleburne county court; D. C. Blackwell, Special Judge.

Statutory ejectment by T. J. Johns, as administrator, against A. M Brooks and others. From a judgment for the plaintiff, the defendants appeal. Affirmed.

This was a statutory action in the nature of ejectment, brought by the appellee, T. J. Johns, as administrator of the estate of J. R. Newell, deceased, against A. M. Brooks, to recover the possession of certain specifically described real estate. The suit was begun originally in the circuit court, but by agreement of the parties was transferred to the county court of Cleburne county. The defendant A. M. Brooks interposed a plea setting out the fact that he was occupying the premises as a tenant, and suggesting that his landlord, M. A. Rhodes and the heirs of John Fadley, deceased, naming them, be made parties defendant to said suit. This was done, and the defendants A. M. Brooks, M. A. Rhodes, Jonathan Fadley, Mary Harris, Michael Fadley and Mrs. Rhodes, the heirs of John Fadley, deceased, interposed the plea of not guilty.

There was no conflict in the evidence. The plaintiff showed the death of his intestate, J. R. Newell, his appointment as administrator of said Newell's estate by the probate court of Cleburne county, duly and regularly made, possession of the premises in controversy by his said intestate, at the time of his death, a full and complete chain of title from the government to his said intestate; also the existence of debts against the estate of said decedent, and that the rental value of the premises was $50 per annum. The defendants claim title through mesne conveyances from Mrs. E R. Newell, the widow of plaintiff's intestate. They offered in evidence certain proceedings in the probate court of Cleburne county, setting apart the lands in controversy as a homestead to Mrs. E. R. Newell, as the widow of said J. R Newell, deceased, under section 2562 of the Code of 1886, said proceedings begun on the 19th day of July, 1896, by petition of said Mrs. E. R. Newell, to have said lands set apart to her as a homestead. Said proceedings consisted of said petition; the orders of the court thereon appointing commissioners to set apart such homestead; the report of the commissioners, and the order or decree of the court confirming the report of the commissioners and setting apart the lands involved in this suit as the homestead of said widow. There was also introduced in evidence a deed from Mrs. E. R. Newell to D. A. Sox, conveying the lands in controversy, which was dated July 20, 1895; and also a deed from D. A. Sox and wife to M. A. Rhodes and John J. Fadley dated July 22, 1895. The other facts of the case are sufficiently stated in the opinion.

The cause was tried by the court without the intervention of a jury, and upon the introduction of all the evidence the court rendered judgment in favor of the plaintiffs for the lands sued for, and for damages for their detention. To the rendition of this judgment the defendants duly excepted. The defendants appeal, and assign as error the rendition of judgment for the plaintiff.

James Aiken, for appellants.

Merrill & Bridges, for appellee.

HARALSON J.

J. R. Newell, a resident citizen of Cleburne county, died intestate on the 17th June, 1895, leaving a widow, Mrs. R. E. Newell, and no minor child or children. He was the owner, at the date of his death, of a homestead in lands, on which with his wife he resided, and on which she continued to reside after his death. No administration was taken on the estate of said Newell until the 21st January, 1896, on which date letters of administration were issued by the probate court of said county to the appellee.

On the 19th of July, 1895, the widow of the said deceased filed in the probate court of said county her written application, verified by her own oath, by which she sought to have her homestead and other exemptions set apart to her. The petition, after setting out other appropriate and necessary averments, contained the following statement as to her homestead exemption and her exemption as to personal property of the estate of her husband: "That said J. R. Newell, deceased, at and prior to his death owned and occupied the following described lands, to wit, E. 1/2 of S.W. 1/4, and W. 1/2 of S.W. 1/4, of section 14, township 15, range 11, in Cleburne county, Alabama, with his family, the undersigned, as his homestead, upon which he resided at and prior to his death, and that said homestead does not exceed in area 160 acres, nor in value two thousand dollars, and that said lands embrace the entire tract constituting his homestead, and that the undersigned, his said widow, has continuously resided upon and occupied said lands since his death as her homestead, to the present time, and that said deceased did not have personal property exceeding in value $1,000. And that there has been no administration upon the estate of said deceased, and more than sixty days have elapsed since the death of said deceased. Wherefore petitioner now makes this application for the purpose of having the above-described lands set apart to her as her homestead, together with the personal property belonging to said deceased at the time of his death, she claiming said homestead and personal property exempt from administration and from the payment of the debts of said deceased."

On the same day, the court appointed two commissioners, and issued a commission to them, who were required to make "a full and complete inventory, and appraisement of the real and personal property of said decedent, describing the property and making and stating the value of...