Ely v. Pace
| Decision Date | 12 January 1904 |
| Parties | ELY v. PACE ET AL. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Marengo County; Jno. C. Anderson, Judge.
Statutory action of ejectment by M. Ely against Sallie Pace and Tom Parker. Judgment for defendants. Plaintiff appeals. Reversed.
The defendant Sallie E. Pace filed a plea disclaiming possession of the premises sued for at the time the action was commenced, and the defendant Tom Parker pleaded not guilty. Issue was joined on these pleas.
The evidence for the plaintiff shows that on May 4, 1893, and ever since, J. W. and J. R. Smith were insolvent; that at that time they made and executed a mortgage to the plaintiff on the lands described in plaintiff's complaint; that said Smiths were in possession of said lands at the time of the execution of the mortgage; that said mortgage which was introduced in evidence was acknowledged before L. J. Pace, a justice of the peace; that Pace was at the time, and is now a brother-in-law of the said Smiths, and was at the time, and is now, the husband of Sallie Pace; that he acted as agent for his wife in renting and looking after the land. The mortgage from J. W. and J. R. Smith to the plaintiff was introduced in evidence after the proof of its execution, and was shown to have been executed on May 4, 1893, but said mortgage was never recorded in the probate office of Marengo county.
The defendant offered in evidence a deed executed from said J. R and J. W. Smith to Sallie E. Pace, which was dated March 5 1895. To the introduction of this deed in evidence the plaintiff objected, upon the ground that said deed was irrelevant and was immaterial. The court overruled the objection, refused to give the general affirmative charge requested by plaintiff, and gave that requested by defendants.
Miller & Herbert, for appellant.
Taylor & Elmore, for appellees.
This was an action in the nature of an action of ejectment, by M Ely against Sallie Pace and Tom Parker. Defendants pleaded separately,--Sallie Pace, disclaiming possession, and Parker pleading the general issue.
Section 1533 of the Code of 1896 provides, that defendants, in an action of this kind, may disclaim possession of the premises sued for, in whole or in part, and upon such disclaimer, the plaintiff may, if he so elects, take issue, and if issue be found for him, he is entitled to judgment. This denial of possession put in issue the question of possession, and only that. It was for the purpose on this trial, an admission of plaintiff's title, with a denial of defendant's possession. McQueen v. Lampley, 74 Ala. 408, 410. The contention before the court, so far as the defendant Sallie Pace was concerned, was confined to the fact of possession by her of the premises, at the time the suit was commenced. To support the action, the fact of possession of Mrs. Pace, at the commencement of the suit being contradicted, it was necessary for plaintiff to show, that she was in actual possession, or had dispossessed him which was not done. Kirkland v. Trott, 66 Ala. 420; Bailey v. Selden, 124 Ala. 406, 26 So. 909; Tyler on Judgments, 472. The judgment entry shows that issue was joined on the pleadings filed in the cause, and the case was tried, both, on issue joined on defendant Pace's disclaimer of possession, and on Parker's plea of not guilty. The court gave the general charge in favor of defendants and refused a like charge for plaintiff.
The plaintiff claimed title to the land under a mortgage executed to him by James R. and John W. Smith, Jr., executed on the 4th of May, 1893, which mortgage was duly acknowledged but never recorded. Indeed, it contained a stipulation that if placed on record it should become void and of no effect. The defendant Parker, by his plea admits his possession of the land sued for, but did not attempt, in any way, to show title in himself. So far as he was concerned, the plaintiff, as for any muniment of title he offered and introduced in evidence, was entitled to the general charge.
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