Burrows v. Pickens

• Court: Alabama Supreme Court
• Writing for the Court: SHARPE, J.
• Citation: Burrows v. Pickens, 129 Ala. 648, 29 So. 694 (Ala. 1901)
• Decision Date: 05 February 1901
• Parties: BURROWS v. PICKENS ET AL.

29 So. 694

129 Ala. 648

BURROWS v. PICKENS ET AL.

Supreme Court of Alabama

February 5, 1901

Appeal from circuit court, Madison county; H. C. Speake, Judge.

Action by Mary Jane Pickens and others against Demps Burrows to recover certain lands. Judgment for plaintiffs, and defendant appeals. Affirmed.

Before the cause was tried, the death of Wiley Pickens, one of the plaintiffs, was suggested, and the order made in reference thereto was as follows: "In this cause the death of Wiley Pickens is suggested, and the cause is submitted to the court on an agreed statement of facts." The agreed statement of facts under which the cause was submitted to the court for the trial without the intervention of a jury disclosed the following facts: On January 10, 1880, W. R Cobb and wife conveyed to Reuben Pickens the land in controversy. On January 28, 1880, Reuben Pickens and Mary J Pickens, his wife, executed a mortgage on the said lands to James J. Grayson. On January 18, 1886, Reuben Pickens and Mary J. Pickens executed another mortgage upon the same lands to the said James J. Grayson. Reuben Pickens died before the institution of this suit. At the time of his death, and at the time of the execution of each of the mortgages to James J. Grayson, he occupied said lands as a homestead, and his wife and children resided thereon. The property did not exceed $2,000 in value. Mary J. Pickens was the widow of Reuben Pickens, and the other plaintiffs are the children of said Reuben and Mary J. Pickens, and the heirs at law of Reuben Pickens. On January 26, 1890, James J. Grayson, the mortgagee, foreclosed each of the mortgages held by him, and at the foreclosure sale one Baker became the purchaser of the land; and James J. Grayson conveyed to him all the right title, interest, and claim acquired by him under the two mortgages. Baker then sold and conveyed the land back to James J. Grayson, and afterwards Grayson sold and conveyed the said lands to J. W. Grayson, who by warranty deed of October 31, 1894, sold and conveyed said lands to the defendant Demps Burrows, who since the date of said sale and conveyance has been in the actual occupancy and possession of said lands, claiming them as his own. After the mortgage sale by Grayson to Baker, and the reconveyance by Baker to him plaintiffs rented the lands from J. J. Grayson, and after he conveyed them to J. W. Grayson they rented from him, and finally removed from the lands before the conveyance to the defendant. The two mortgages from Reuben Pickens and Mary J Pickens to J. J. Grayson were made a part of the agreed statement of facts. The mortgage executed on January 26 1888, although signed by Mary J. Pickens, was not separately acknowledged by her. The mortgage executed on January 18, 1886, contains the recital that "Mary J. Pickens, wife of said Reuben Pickens, joins in the execution of this mortgage for the purpose of relinquishing any right or claim of dower she may have in said lands." This mortgage was signed by Mary J. Pickens, and was acknowledged separate and apart from her husband. The trial of the case was had on May 25, 1899, but the agreed statement of facts contained no recital with reference to the growing crop upon the land sued for. The bill of exceptions recites that when the court was about to announce the judgment in the case "counsel for the defendants...