Daughtry v. Thweatt

• Citation: 105 Ala. 615,16 So. 920
• Parties: DAUGHTRY v. THWEATT.
• Decision Date: 17 January 1895
• Court: Supreme Court of Alabama

16 So. 920

105 Ala. 615

DAUGHTRY v. THWEATT.

Supreme Court of Alabama

January 17, 1895

Appeal from circuit court, Barbour county; J. M. Carmichael, Judge.

Statutory real action by Ella R. Daughtry against Mildred I. Thweatt to recover two parcels of land situate in the city of Eufaula. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Issue was joined on the plea of the general issue. The facts showing the claims and the titles upon which the plaintiff and the defendant, respectively, based their right to the lands sued on are sufficiently stated in the opinion. The defendant interposed a demurrer to the plaintiff's evidence, which was sustained by the court, and the plaintiff duly excepted. At the request of the defendant in writing the court gave the general affirmative charge in her behalf and to the giving of this charge the plaintiff duly excepted. There was judgment for the defendant. Plaintiff appeals, and assigns as error the sustaining of the demurrer to her evidence, and the giving of the general affirmative charge in behalf of the defendant.

P. B McKenzie, for appellant.

G. L Comer, for appellee.

BRICKELL C.J.

This was a statutory real action for the recovery of two parcels of land situate in the city of Eufaula, in which the appellant was plaintiff and the appellee was defendant. The facts are that the legal estate in the premises at one time resided in the appellant. In December, 1881, the mother and guardian of appellant, who was then of the age of 10 years in the capacity of guardian, presented to the judge of the court of probate of the county of Barbour, in which county she and the appellant then resided, and in which county the premises were then situate, a petition in writing, verified by affidavit, praying an order authorizing the sale of the premises, and for the reinvestment of the purchase money. The material allegations of the petition were that the premises were a residence lot in the city of Eufaula, which could be made a source of income only by renting; that it was expensive to keep them in repair; that, owing to their location, and the nature of the property, the income they would yield would be but a small percentage of their actual value, not amounting to legal interest, which would be considerably reduced by payments for taxes, insurance, and repairs, and that the premises were the only real estate owned by the appellant. The judge of probate, having examined witnesses, made an order authorizing the sale of the premises for cash, requiring notice of the time, place, and terms of sale to be given in precise conformity to the requirements of the statute. The sale was made, the purchase money paid, a report of it made, a confirmation of the report by the probate judge, and an order made directing a conveyance to the purchaser, which was executed, the purchaser entering into possession, and under mesne conveyances from him the appellee deduces title. The statute under which the proceedings were had provided: "For good cause shown, the judge of probate may authorize the sale of personal and real property of the ward, in such manner as he may direct; and direct its reinvestment in bonds, notes or bills of exchange, at interest on mortgage security, or in other property, in the name of the ward; but no sale of real estate must be had on less than forty days notice, which notice must be published once a week for three successive weeks in a newspaper nearest the place where the sale is to be made; and returns of sales must be made and confirmed as in sales of land...