Findlay v. Hardwick

• Decision Date: 28 February 1935
• Docket Number: 2 Div. 51
• Parties: FINDLAY et al. v. HARDWICK.
• Court: Alabama Supreme Court

160 So. 336

230 Ala. 197

FINDLAY et al. v. HARDWICK.

2 Div. 51

Supreme Court of Alabama

February 28, 1935

Rehearing Denied March 28, 1935

Appeal from Circuit Court, Hale County; John Miller, Judge.

Action by Georgia Hardwick against John H. Findlay and another. From a judgment for plaintiff, defendants appeal.

Affirmed in part, and in part reversed and rendered.

Tom B Ward and J. Monroe Ward, both of Tuscaloosa, and S.F. Hobbs of Selma, for appellants.

Jones &amp Dominick, of Tuscaloosa, for appellee.

BROWN Justice.

This action was commenced by the appellee, Georgia Hardwick, and her husband, William G. Hardwick, on November 2, 1933, against appellants, John H. Findlay and Lenna J. Findlay, the complaint embodying five counts.

Before the case was submitted, the complaint was amended by striking out William G. Hardwick as party plaintiff, thus leaving Georgia Hardwick as the sole plaintiff.

The first count was statutory ejectment in Code form (an action in the nature of an action in ejectment, Code 1923, § 7453) for the recovery of the possession of the N.E. 1/4 of the S.E. 1/4 of section 19, township 23, range 5 east, in Hale county; the second, trespass de bonis asportatis, for the wrongful taking of one bale of cotton and sixty bushels of corn grown during the year 1933 on said lands described in count 1; the third count was in trover for the conversion of said cotton and corn; the fourth in detinue for the recovery of the possession of the cotton and corn; and the fifth in case for the destruction of the landlord's lien on the cotton and corn alleged to have been grown on the lands by Frenshaw Steele during the year 1933.

The defendants demurred to the complaint because: "1. There is a misjoinder of parties defendant to said cause. 2. There is a misjoinder of causes of action in said suit. 3. There is a misjoinder of causes of action in that the causes of action set up in said complaint do not arise out of the same transaction."

The demurrers were overruled, and properly so. The first and second grounds were not sufficiently specific. Code 1923, § 9479; Central of Georgia Railway Co. v. Joseph, 125 Ala. 313, 28 So. 35.

The statute, Code 1923, § 9467, authorized the joinder of all actions ex delicto of the same nature--that is, personal actions--in the same suit, but in separate counts, whether they arose out of the same transaction or not. Bridwell v. Brotherhood of Railroad Trainmen et al., 227 Ala. 443, 150 So. 338; Ballenger v. Ballenger, 205 Ala. 595, 88 So. 826.

It is only where the plaintiff seeks to join counts ex delicto with counts ex contractu that it must appear from the averments of the complaint that the cause of action arose "out of the same transaction or related to the same subject-matter." Western Ry. of Alabama v. Hart et al., 160 Ala. 599, 49 So. 371, 375; Cox v. Awtry, 211 Ala. 356, 100 So. 337.

All the counts were ex delicto; therefore the third ground of demurrer was not well taken.

The statutory action in the nature of ejectment is a mixed action partaking of the nature of actions in rem and also in personam. It partakes of an action in rem in so far as the court undertakes to determine the title and deliver through its process the possession of the land, and in personam in so far as it is a remedy for reparation in damages, as for "mesne profits and damages for waste, or any other injury to the lands, as the plaintiff's interests in the lands entitled him to recover, to be computed up to the time of the verdict." Code 1923, § 7453; Woolf v. McGaugh, 175 Ala. 299, 57 So. 754; Walker's American Law (11th Ed.) p. 569, § 264.

Gulf Yellow Pine Co. v. Urkuhart, 151 Ala. 452, 44 So. 555, dealt with a joinder of trespass and trover under section 3293 of the Code of 1896, which provided that "Counts in trover, trespass and trespass on the case may be joined, when they relate to the same subject-matter." While that statute is a predecessor to section 9467 of the present Code, it was revised to speak its present language in bringing it forward into the Code of 1907 as section 5329.

In a later case, Snead v. Patterson, 190 Ala. 43, 66 So. 664, it was held, that counts in detinue, trover, and trespass quare clausum fregit were properly joined, and in the course of the opinion the trespass counts were characterized as "real actions." That characterization appears to have been a mere inadvertence not necessary to a decision of the question presented, and is contrary to the express holding in Woolf v. McGaugh, supra, where the character of the action, trespass quare clausum fregit, was directly involved and necessarily decided. It is also contrary to the unanimous authority on the subject. Walker's American Law, supra; 63 C.J. p. 964, § 127.

Looking to the predecessors of the present statute, section 9467, they clearly dealt with personal actions, and, when this statute is considered in the light of its history, it is apparent that it was not the legislative intent in its revision to authorize the joinder of a personal action with the action of ejectment or the statutory action in the nature thereof.

The trial was before the court sitting without a jury.

It appears without dispute that Narcilla White is the common source of the title to the land in controversy; this is conceded in appellants' brief. It is also conceded that said Narcilla White, up to the year 1903, owned that portion of the N.E. 1/4 of the S.W. 1/4 of section 19, township 23, range 5 east, in Hale county, lying north of Baptist creek, consisting of about twenty acres, and the N.W. 1/4 of the S.E. 1/2 and the N.E. 1/4 of the S.E. 1/4 of the same section, township, and range, the first tract above described being designated as the "west forty," the next as the "middle forty," and the last as the "east forty," along with other lands; that she had a number of children and undertook to parcel out and divide her holdings between them; that her son, Frenshaw Steele selected as his portion said "west forty and the middle forty"; that the deed executed to said Frenshaw Steele, instead of describing the land selected by him, described the "west forty"--twenty acres of it--and the "east forty"; that Frenshaw Steele went into possession of the lands selected by him--the "west forty" and the "middle forty"--and remained in possession thereof until January 21, 1908, when he executed a deed, in lieu of foreclosure, to one G. Brigden, and thereafter rented said west and middle tracts from Brigden up until Brigden's death; that Narcilla White retained possession of the east forty up until her death in 1930, more than twenty years; that from 1903 to the death of Narcilla White Frenshaw Steele rented a portion of the east forty--seven acres--and cultivated the same, paying his mother rent therefor up until she died, more than twenty years; that he (Frenshaw) never claimed any right, title, or interest in said land, except as a tenant of his mother.

The evidence is further without dispute that the mistake in the description in said deed executed by Narcilla White to Frenshaw Steele was not discovered until the year 1931, after the death of Narcilla White. The evidence is also without dispute that Frenshaw Steele, after the death of Narcilla White, rented the east forty from her heirs and paid them rent therefor, and was in possession of the east forty as such tenant in 1933, cultivated the same, and remained thereon until the defendant John Findlay, through force, drove him out of possession and took from him the cotton and corn sued for in this case.

One of appellants' major contentions is that a grantor remaining in possession is presumptively but a tenant at sufferance of the grantee, and such possession cannot become adverse, until there is a clear, unequivocal, and notorious disclaimer of the title "of his landlord." Daniels et al. v. Williams et al., 177 Ala. 140, 58 So. 419.

This is a sound proposition of law, but it is not applicable, where the supposed grantee claims no interest in the land covered by the deed and recognizes the title of the person in possession by renting the land and becoming a tenant himself. Nor is it applicable except as between the parties to the deed. It does not apply to subsequent grantees. Gerald et al. v. Hayes et al., 205 Ala. 105, 87 So. 351.

Another contention is that parol evidence was not admissible to vary the terms of the deed, in an action of ejectment by showing the mistake in the description of the deed. This is also a correct abstract proposition.

But where, as here, the supposed grantee claims no right or title to the land embraced in the deed, the evidence was admissible to show the character of the holder's possession.

Moreover, there could be no clearer disavowal of the title of the supposed grantee than a renting of the land in question by the supposed grantor to the supposed grantee and such grantee entering under such renting. In fact and in law, in these circumstances, no necessity exists for such disavowal.

The plaintiff successfully deraigned...