Callahan v. Nelson

• Court: Alabama Supreme Court
• Writing for the Court: TYSON, J.
• Citation: Callahan v. Nelson, 128 Ala. 671, 29 So. 555 (Ala. 1900)
• Decision Date: 20 December 1900
• Parties: CALLAHAN ET AL. v. NELSON ET AL.

29 So. 555

128 Ala. 671

CALLAHAN ET AL. v. NELSON ET AL.

Supreme Court of Alabama

December 20, 1900

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

Action by W. W. Callahan and others against Abigail Nelson and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

This was a statutory action of ejectment brought by the appellants, W. W. Callahan, W. E. Skeggs, and E. W. Godbey against the appellees, Abigail Nelson, W. W. Nelson, and John Nelson, to recover eight acres of land, specifically described in the complaint. The plaintiffs claimed as purchasers at a sale under an execution issued on a judgment rendered against J. M. Nelson and G. A. Nelson, and which execution was levied upon the property in suit, as being the property of said J. M. Nelson. The defendants pleaded the general issue. The cause was tried by the court without the intervention of a jury, and, at the request of the plaintiffs, the court made a special finding of the facts which was in words and figures as follows: "I find that J. M. and G. A. Nelson executed the injunction bond offered in evidence upon which suit was brought, judgment rendered against them, executions regular issued thereon, which was levied on the property in dispute as property of defendants in execution, after advertisement was sold, and plaintiffs became purchasers thereof, and received sheriff's deed therefor, and that at said sale notice was given by G. A Nelson that the purchaser at said sale would bring a lawsuit. I further find that on the 17th day of January, 1884, a deed acknowledged on the 14th day of February, 1874, was made by E. Shirk and wife to J. M. Nelson for lands, among others embraced in this suit; that said deed was not filed for record until the 10th of August, 1888. I further find that said J. M. Nelson was with his family from the last of January, 1874, until the time of his death, in possession of this land, and that he gave it in for taxes most of this time, and, further, that he filed a bill in chancery, and made affidavit, among other things, that he was seised in fee of said land. I further find, on 20th day of December, 1877 J. M. Nelson executed a deed, attested by two witnesses conveying the land to the defendant Abigail Nelson; that said deed was not acknowledged until December 18, 1886, and was not recorded until the 8th of July, 1895. I further find that this deed was never delivered to A. Nelson, nor did she have any knowledge of the execution. I further find that in 1863 the defendant A. Nelson was, by deed executed by A. Condet and others, the owner of land described in the deed of said Condet, situated in the state of Indiana. I further find that by laws of Indiana these lands were the statutory separate estate of the said A. Nelson. I further find on or about the 14th of January, 1874, A. Nelson bought, with other lands, the lands in suit, and paid for them by conveying the same land sold, so situated in Indiana, therefor. I further find that a deed was executed by E. Shirk and wife for lands in dispute, but that the deeds therefor and thereto are lost. I further find that, shortly after the said purchase from E. Shirk, the defendant A. Nelson and her husband and family went into and have been in possession of said land ever since. I further find that on the 18th of December, 1886, defendant sold to E. Gordon all the lands by her received from said Shirk except the lands embraced in this suit, that she reserved as a homestead. I further find that the said A. Nelson received the money and notes therefor in her own name. I further find that Mrs. A. Nelson never had any notice that J. M. Nelson had received any deed from Shirk and wife to J. M. Nelson, or any notice that J. M. Nelson asserted any claim or title to said land; further, that his said deed was not filed for record until August 10, 1888, more than ten years after defendant Abigail Nelson and her family, including J. M. Nelson, went into possession. I further find that A. Nelson never had any notice of the deed executed by J. M. Nelson conveying the land to her of date 20th of December, 1877, and acknowledged December 18, 1886. I further find that Mrs. Nelson paid the entire purchase money for said land, and went into possession of the same, the latter part of January, 1874, without notice of claim of J. M. Nelson or any one else to said land. I further find that J. M. Nelson died October 19, 1896, and this land now in suit was occupied as a homestead, and no dower had ever been assigned his widow, A. Nelson, defendant in this suit, and that she since January, 1874, and continuously up to the present time, has occupied said land as her homestead. Upon the finding of facts, the lower court is of the opinion that defendants are entitled to a judgment. It is therefore considered by the court that the suit of plaintiffs be, and the same is hereby, dismissed, and the defendants go hence, and recover of the plaintiffs the cost in this behalf expended, for which let execution issue. It is further ordered that plaintiffs be allowed sixty days from adjournment of court to prepare and tender to the presiding judge their bill of exceptions in this case." The plaintiffs separately excepted to specific portions of the court's finding, and also separately excepted to many rulings of the trial court upon the evidence; but, under the...