Campbell v. Bates

• Citation: 143 Ala. 338,39 So. 144
• Parties: CAMPBELL ET AL. v. BATES.
• Decision Date: 20 April 1905
• Court: Supreme Court of Alabama

39 So. 144

143 Ala. 338

CAMPBELL ET AL. v. BATES.

Supreme Court of Alabama

April 20, 1905

Appeal from Circuit Court, Bibb County; John Moore, Judge.

Ejectment by William S. Bates against J. N. Campbell and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Rehearing denied June 30, 1905.

The plaintiff introduced a deed purporting to have been executed by one George Stewart in the presence of one witness, R. L Boyd, and bearing date September 6, 1855. The plaintiff testified in his own behalf that George Stewart was in possession of the lands described in the deed from 1844 to 1855, when plaintiff bought it; that none of the land was in cultivation in 1844 except a little garden cleared in that year. "There was a house built on the land by George Stewart before the garden was cleared, and in 1844 my father rented the land and lived in the house off and on from 1844 to 1855. He attended to the place for George Stewart." Plaintiff was placed in possession in 1855 by George Stewart and remained in possession till 1861, when he went into the war; sometimes living on the land and sometimes not, but always keeping live stock on it, and claiming the lands as his own. Plaintiff identified the Stewart deed as one that was delivered to plaintiff in 1855 by George Stewart, and which had been in plaintiff's possession ever since. Plaintiff testified that Boyd, the subscribing witness, was present when the deed was executed, and was now dead. Other evidence was introduced, which had a tendency more or less to corroborate the testimony of plaintiff. The defendants introduced a Mrs. Watts and her husband, both of whom testified substantially that about the year 1866 one Johnnie Little was living on the premises in dispute, which was known as and called the "Howey Wright Place," and rented the premises to Mrs. Watts' mother. In June, 1866, Little returned to the premises to gather a wheat crop he had on the land, and lived with Mrs. Watts' mother. Mrs. Watts' mother left the premises at close of the year 1866, but Johnnie Little continued to reside on the land for a number of years afterwards; exact length of time not known, but think about six or seven years after 1866. The defendant asked the witness Mrs. Watts, "Did you ever hear Johnnie Little, while in possession of the land, say that he had lost his deed to the land?" The court sustained plaintiff's objection to this question, and defendants excepted. J. N. Campbell, one of the defendants, then testified that Johnnie Little was on the land in dispute in 1854; that he was living on the land in 1857, and that witness spent the night with Johnnie Little, who was then living on the lands in dispute, in 1872; that he does not remember seeing Little on the land from 1857 to 1872; that witness moved away from the neighborhood in 1857. Witness had never heard of plaintiff claiming the land till present suit was brought. Witness had known plaintiff's father, but never heard of his ever living on the lands in dispute. Defendants went into possession of premises in 1895, but did not get a deed to the land for some time after. Jasper Little is the only child of Johnnie Little, now deceased; and Francis Morrison, D. C. Parsons, and Mrs. Owen are the only children of Harvey Wright, now deceased. Defendants then introduced in evidence the following deeds, purporting to convey the lands in dispute: Deed from Carrol to McCormick dated November, 1874; sheriff's deed (reciting execution against McCormick) to Berney Nat. Bank, February 21, 1898 deed from Berney National Bank to J. N. Campbell and J. G. Moore (the defendants), March 25, 1898; deed from Jasper Little to defendants, May 25, 1897; deed from Francis Morrison to defendants, September 8, 1897; deed from D. C. Parsons to defendants, September 29, 1897; deed from Mrs. Owen to defendants, October 8, 1899. The defendants introduced testimony to prove that Harvey Wright lived on the disputed premises in 1860, and that subsequently Carrol lived on the premises. The defendants introduced a number of witnesses whose testimony tended to prove that the name of Boyd affixed as a witness to deed from George Stewart to plaintiff was not the genuine signature of Boyd, and also examined experts in handwriting, whose testimony tended to show that the body of the deed, the name of the grantor, and the name of the attesting witness to the Stewart deed were all in the same handwriting. The defendants then offered in evidence other writings and signatures of the grantor Stewart and the witness Boyd for comparison by the jury, but on objection of plaintiff the court excluded the other writings and defendants excepted. In rebuttal the plaintiff introduced evidence the tendency of which was to establish the genuineness of the signatures to the Stewart deed. The defendants asked the court, among others, to give the following charges: "(c) I charge you that if you believe from the evidence the name of R. L. Boyd, as appears in said deed, is not his genuine signature, then your verdict must be for the defendant." "(e) I charge you that you must believe from the evidence in this cause, to your reasonable satisfaction, that William S. Bates' claim to this land was bona fide, and that he held it in his possession under such bona fide claim, before you can find your verdict for him; and in judging of the question whether or not such claim was bona fide you can take into consideration the undisputed fact that the plaintiff left the state of Alabama in the year 1862, and remained away without claiming the land in any way, other than keeping the deed, till the year 1902. (f) I charge you, gentlemen of the jury, that if plaintiff is entitled to recover any portion of the lands sued for, it is only such portion of same that was actually occupied for a period of ten consecutive years by George Stewart and those holding under him."

Logan & Vande Graaf and W. W. Lavender, for appellants.

Daniel Collier, for appellee.

SIMPSON J.

This was an action of ejectment by appellee (plaintiff) against appellants (defendants), the judgment being for the plaintiff. There are numerous assignments of error, but, as those insisted upon are treated of in appellants' brief without reference to their number, we will take them up in the order indicated in said brief.

1. The third assignment relates to the objections to the introduction of the deed of September 6, 1855, from Stewart and wife to William S. Bates, the father of plaintiff, and the first "mark of suspicion" which is called to the attention of the court (in the original deed which is before the court) is that the word "fourth" after the words "north east" seems to be written over some other word. The alteration seems to be by writing the word "fourth" over the word "quarter" (improperly spelled "qauter"). However that may be it is evidently a mere correction of a word in the description of the land, and not only does it not work any special benefit to the plaintiff, but no other word than "quarter" or "fourth" (being synonymous) can be conceived of as being appropriate at this place, as there is no other subdivision, according to the manner of describing lands in this...