Cochran v. Brannan

• Decision Date: 02 March 1912
• Docket Number: 1,362.
• Citation: 196 F. 219
• Parties: COCHRAN et al. v. BRANNAN et al.
• Court: U.S. District Court — Southern District of Alabama

196 F. 219

COCHRAN et al. v. BRANNAN et al.

No. 1,362.

United States District Court, S.D. Alabama.

March 2, 1912

Rich &amp Hamilton, of Mobile, Ala., for plaintiffs.

L. H. &amp E. W. Faith, of Mobile, Ala., for defendants.

TOULMIN District Judge (orally).

The ground of the motion is, in substance, that the court in the course of the trial erred in a certain ruling which was adverse to plaintiffs' right to recover, and because of such ruling plaintiffs took a nonsuit with a bill of exceptions.

The plaintiffs claimed in the suit damages for an alleged trespass by defendants on certain lands described in the first and second counts of the complaint, alleging that they were the owners of said lands. In an amendment to the complaint, which is designated as count 3, plaintiffs allege that an undivided one-half interest in said lands belonged to them, and further alleged that one Mary Henry claimed the other undivided one-half interest, under the same title that plaintiffs owned title to their undivided one-half interest and so claimed the same on the 20th day of March, 1911, and subsequent thereto until the commencement of this suit; that before said 20th of March, 1911, one Amelia Frolichstein recovered in an ejectment suit against said Mary Henry in the circuit court of Mobile county the undivided one-half interest claimed by said Henry on a rival title to that under which plaintiffs and said Mary Henry claimed.

The defendants pleaded to the original complaint, and to the complaint as amended, pleas Nos. 1 and 2, which are as follows:

'First. The general issue.

'Second. For further plea these defendants say that on, to wit, the 10th day of March, 1911, they purchased from Amelia Frolichstein for the consideration of eleven thousand dollars cash paid to her, and received from her a deed of conveyance conveying to them, under covenants of warranty of title, all the pine timber, both down and standing, upon the said lands described in the complaint, except the standing timber under seven inches in diameter at the ground, but were given and granted the right to turpentine all of said timber without reference to size, and the right to use and occupy said lands for the purpose of cutting said timber and turpentining purposes. And they aver that the said Amelia Frolichstein was then, at the time of the making of the said conveyance to the defendants, in the actual possession of the said lands, and owned the same in fee, and that these defendants entered into possession of said lands and the pine timber thereon under their said purchase and the deed of conveyance executed to them as aforesaid.

Plaintiffs introduced evidence tending to show title to the land described in the complaint in one S. G. Cochran, deceased that they were the legal heirs of said Cochran, and claimed said land by inheritance from him. In the first and second counts of the complaint plaintiffs claimed to own the whole title to the land described therein. By the amendment they claimed to own only an undivided one-half interest in the same. Plaintiffs then introduced a transcript of the record in the circuit court of Mobile county, Ala., of an action of ejectment by Amelia Frolichstein against Mary Henry for the land described in the complaint, in which said Frolichstein recovered judgment against said Henry, adjudging the former the owner of said land, and authorizing a writ of possession therefor, which it appeared had been duly executed, and said Frolichstein put in possession. The plaintiffs' counsel then announced that he had introduced all of his evidence so far as the same related to their title, that he had no more...