Bynum v. Gold

• Decision Date: 23 April 1895
• Citation: 106 Ala. 427,17 So. 667
• Parties: BYNUM v. GOLD ET AL.
• Court: Alabama Supreme Court

17 So. 667

106 Ala. 427

BYNUM v. GOLD ET AL.

Supreme Court of Alabama

April 23, 1895

Appeal from circuit court, Jackson county; John B. Tally, Judge.

Action by Sarah Bynum against William A. Gold and another to recover the possession of lands. Defendants pleaded not guilty. From a judgment for defendants, plaintiff appeals. Affirmed.

The plaintiff introduced in evidence a deed which was executed to her by one H. R. Bynum on May 16, 1890, which conveyed to the plaintiff the property involved in this controversy. The plaintiff also introduced in evidence a mortgage which was executed by the said H. R. Bynum on June 1, 1889, and given to secure a debt evidenced by a note payable on June 1, 1890. The plaintiff testified in her own behalf that, upon H. R Bynum being unable to pay the mortgage debt, he executed to her the above-mentioned deed, in payment of said indebtedness. The plaintiff also testified that, at the time of the execution of the mortgage by H. R. Bynum to her, one W. J. Porter occupied and was in possession of the property sued for, as the agent of said H. R. Bynum, and that, upon the execution of the deed to her, the said Porter attorned to her as her tenant, and remained in possession of the property until the end of the year. The defendant introduced in evidence a deed, executed by H. R. Bynum to J. P. Rorex, W A. Coffey, and R. C. Ross, conveying, with other real estate the property sued for in this action, upon the recited consideration of the grantees in said deed assuming certain specified debts, and agreeing to pay certain other particularly mentioned debts of the grantor. This deed was executed on June 26, 1890. The defendants also introduced in evidence a deed executed by J. P. Rorex, W. A. Coffey, and R C. Ross, together with their wives, conveying the property previously purchased from H. R. Bynum to the defendants in this suit. This deed was executed April 22, 1891. J. P. Rorex, one of the grantees in the deed from Bynum to Rorex, Coffey, and Ross, testified that he made the purchase in behalf of himself and his copurchasers, but that, when the proposition of sale was made to him by H. R. Bynum, he, knowing of the mortgage held by the plaintiff on said land, refused to purchase the property until the mortgage was satisfied; that thereupon, at the instance of H. R. Bynum, there was indorsed upon the margin of the record book in which the mortgage was recorded, the following statement: "This mortgage was satisfied in full, this June 26th, 1890." This statement was signed by Sarah Bynum, and witnessed by the justice of the peace. It was also shown that, prior to the entry of this statement on the margin of the record, there was pasted on said mortgage a statement from Sarah Bynum, bearing date May 16, 1890, that such mortgage had been settled. Rorex further testified that after seeing this statement on the margin of the record, and being told by Bynum that the mortgage had been satisfied, he made the purchase for himself and his co-purchasers; that at the time of this purchase he had no personal knowledge of the fact that W. J. Porter was in possession of the property, nor did he make or cause to be made any inquiry of said Porter as to his (Porter's) right of possession to the said property; and that he did not receive or have any knowledge or notice that the plaintiff claimed the property until nearly a year after the purchase, and until after the purchasers had paid off a majority of the debts which they had obligated themselves to pay. The testimony of the other purchasers, W. A. Coffey and R. C. Ross, corroborated the testimony of Rorex. The plaintiff objected to and moved to exclude from the jury that portion of each of these witnesses' testimony which denied knowledge or notice of the plaintiff's claim of title to the property sued for, upon the ground that the defendants having failed, by special plea, to set up the defense of purchase without notice, the evidence objected to was irrelevant, illegal, and inadmissible under the general issue. Each of these motions was severally overruled, and the plaintiff separately excepted to each of such rulings. The court refused to give the general affirmative charge for the plaintiff, and gave the general affirmative charge for the defendants. The plaintiff assigns as error the rulings of the court upon the evidence, and the refusal of the court to give the charges requested by the plaintiff, and the giving of the general affirmative charge requested by the defendants.

R. E. Hunt and W. H. Norwood, for appellant.

Martin & Bouldin, for appellees.

McCLELLAN J.

"Not guilty" is the plea which presents the general issue in ejectment and in the statutory substitute for that action. The only cases to which this plea is made appropriate by section 2675 of the Code are actions for defamation or for injuries to the person or to real or personal property. That section does not therefore apply to actions of ejectment or the statutory action for the recovery of land, a fact which appears to have been entirely overlooked by this court in Slaughter v. Swift, 67 Ala. 494. But section 2698 of the Code has special reference to the statutory action in the nature of ejectment in respect of what is the general issue and the effect of pleading it. It provides: "The general issue in an action in the nature of an action of ejectment is 'Not guilty,' and under it the defendant may give in evidence the same matters which may be given in evidence under such plea in an action of ejectment; the general issue is an admission that the defendant is in possession of the premises sued for." And obviously this section, and not 2675, is to be looked to in determining the scope of and the evidence admissible under the plea of not guilty in the present action, prosecuted under the statute for the recovery of land. Such matters are competent in this case, in which only the general issue was pleaded, as "may be given in evidence under such plea in an action of ejectment." We have no statute defining this issue in ejectment or prescribing what is admissible under it. We have therefore to look to the common law to determine its scope, and to our own decisions upon section 2698, in connection with the common law, to ascertain what may or may not be proved where this is the plea in an action under the statute. In the common-law action of ejectment, prosecuted nominally by and against fictitious lessees, the real defendant in interest is only admitted to defend upon entering into "the consent rule" and pleading the general issue. By entering into the rule, the defendant consents to be...