Danner v. Crew

• Decision Date: 16 June 1903
• Citation: 34 So. 822,137 Ala. 617
• Parties: DANNER ET AL. v. CREW.
• Court: Alabama Supreme Court

34 So. 822

137 Ala. 617

DANNER ET AL. v. CREW.

Supreme Court of Alabama

June 16, 1903

Appeal from Circuit Court, Barbour County; A. A. Evans, Judge.

Action by John W. Crew against Jere Danner and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

This was a statutory action of ejectment, brought by the appellee John W. Crew, against the appellants, Jere Danner and Margaret Danner, to recover certain lands specifically described in the complaint. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court, at the request of the plaintiff gave to the jury the general affirmative charge in his behalf. The defendants duly excepted to the court's giving of this charge, and also excepted to the court's refusal to give the general affirmative charge requested by them. There were verdict and judgment for the plaintiff. The defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

Williams & Williams, for appellants.

Geo. W Peach, for appellee.

HARALSON J. (after stating the facts).

The defendant, J. M. Danner,--quoting the language of his disclaimer,--"disclaimed possession of any of the land sued for in this action except the dwelling which he occupies by permission of his codefendant [Margaret Danner], and about twelve acres of farm land which he rented in Feb'y last [1902], from said codefendant, and which he holds for the present year under a contract for rent only." This disclaimer of possession of 12 acres, filed on May 6, 1902 does not, as appears, describe the 12-acre tract of land he had rented, so as to identify it as separate from the entire body sued for.

The plaintiff demurred to this disclaimer, as the bill of exceptions recites, and the demurrer was sustained. The demurrer, as is stated, was lost from the file, and it nowhere appears in the transcript. The bill of exceptions states, that the demurrer "was considered by the judge presiding, who made the note on the trial docket:--'Demurrer to plea of disclaimer sustained and defendants except.' " No minute entry shows the judgment of the court on the demurrer, and there is, therefore no judgment on it to be reviewed.--Jasper M. Co. v. O'Rear, 112 Ala. 247, 20 So. 583. Moreover, the defendants pleaded the general issue, and this, under our practice, was a waiver of a disclaimer filed by the defendant to the same land.--Alexander v. Wheeler, 69 Ala. 332; Crosby v. Pridgen, 76 Ala. 385. The case must, therefore, be treated without reference to the attempted disclaimer by defendant, Jere Danner.

The plaintiff and defendants claim title from the same source,--from one Thomas Danner. Margaret Danner, one of the defendants, claimed by virtue of her heirship of said Thomas and by deed from her brother and codefendant, Jere Danner, dated November 1, 1901, and filed for record and recorded September 4, 1902; and the plaintiff, J. W. Crew, as a purchaser of the property, on the 17th February, 1902, levied on and sold as the property of Jere Danner. In this connection the plaintiff's proof showed without conflict, that one Lige Gachet instituted an action in ejectment in the circuit court of Barbour county against the defendant, Jere Danner, for the recovery of 40 acres of land,--not here sued for,--in which action on the 6th of November, 1901, the plaintiff therein recovered a judgment for the land there sued for, together with $17.50 as damages, and costs of suit amounting to $157.40. The land was delivered to the said Gachet, on the 7th January, 1902, under a writ of possession. An execution was issued on this judgment, on the 13th December, 1901, and was levied on the land in suit, on the 10th...