Byars v. Howell

• Decision Date: 05 April 1923
• Docket Number: 8 Div. 461.
• Citation: 95 So. 871,209 Ala. 191
• Parties: BYARS v. HOWELL.
• Court: Alabama Supreme Court

95 So. 871

209 Ala. 191

BYARS v. HOWELL.

8 Div. 461.

Supreme Court of Alabama

April 5, 1923

Appeal from Circuit Court, Lawrence County; Robert C. Brickell Judge.

Action in ejectment by A. S. Byars against W. S. Howell. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

G. O Chenault, of Albany, for appellant.

Callahan & Harris, of Decatur,for appellee.

MILLER J.

This is a statutory ejectment suit brought by A. S. Byars, appellant on April 4, 1921, against W. S. Howell, appellee, to recover possession of a strip of land in the form of a parallelogram being 30 feet wide and 265 7/12 yards long, bounded on the north by land of W. S. Howell (defendant), on the east by lands of C. C. Prince's estate, on the south by land of J. J. Terry, and on the west by Moulton and Decatur pike road. There was judgment on verdict in favor of the defendant, from which the plaintiff prosecutes this appeal.

The defendant demurred to counts 1 and 2, which demurrers were sustained by the court. The plaintiff then filed amended count numbered 3, and designated it "Complaint as Last Amended. Count No. 3." The defendant filed a plea and labeled it, "Answered to Complaint as Last Amended," which evidently referred to count 3, as it alone has on it "Complaint as Last Amended." This answer pleads disclaimer as to part of the land, and not guilty as to the remainder of it. It avers a wire fence runs east and west through this lot the full length 265 7/12 yards, and defendant disclaims possession of all of the lot sued for lying south of this fence, and pleads not guilty to all lands sued for lying north of this fence.

This answer is marked "No. 2," but just before setting out the answer has "1st," and the disclaimer and not guilty plea form one sentence, commencing with the disclaimer and ending with the not guilty plea. The plaintiff demurred to pleas 1 and 2. The court sustained demurrers to plea 1 and overruled demurrers to plea 2, so we must conclude that the court sustained demurrers to the disclaimer and overruled demurrers to the plea of not guilty. The judgment recites, "Issue being joined let a jury come," etc. So the case was tried on either a plea of not guilty to the entire count (No. 3), or on plea of not guilty as to all of the lot north of the fence, and without any plea as to that part of the lot south of the fence. The record is not clear in this respect.

The court gave the general affirmative charge with hypothesis in favor of the defendant, and refused to give a similar charge in favor of the plaintiff.

The clear and undisputed evidence shows the plaintiff had a deed conveying to him the entire lot sued for, and his title to that part of it south of the wire fence was undisputed. There was no evidence tending in any way to show any claim or title of defendant to that part of the lot; so, if there was no plea on file as to it, the plaintiff was entitled to a judgment for it; and, if the plea of not guilty was on file to the entire lot, then the court erred in giving the general affirmative charge for the defendant, and it erred in refusing to give the one requested by the plaintiff.

This is a case, as shown by the evidence, involving a question as to boundaries between coterminous landowners, and in such cases section 2830 of the Code of 1907 has no application.

T. J. Caffey once owned the lot in dispute as well as the land north of it, now owned by the defendant. The evidence tends to show, when he sold and conveyed the land north of it, about 22 acres, to Willis Ray in 1904, he reserved-did not convey-this strip 30 feet wide involved in this litigation. Witness Caffey sold and conveyed the land in dispute, and described in the complaint, to the plaintiff on November 18, 1919. Willis Ray sold and conveyed the 22 acres of land received by him from Caffey to W. W. Windham, Windham sold and conveyed the same to W. K. Pickens, and Pickens and wife conveyed it to the defendant in October, 1917.

There was evidence that there was a fence inclosing this 22 acres or parts of it, which ran through the lot sued for exactly or practically where the present wire fence is located when the defendant purchased it, and a fence has been kept there continuously since then. There was evidence tending to show no part of the land here sued for was described in or conveyed by the deed to defendant. The evidence disclosed that this division fence placed a part of this 30-foot...