Fitzpatrick v. Brigman

• Decision Date: 22 April 1902
• Citation: 133 Ala. 242,31 So. 940
• Parties: FITZPATRICK v. BRIGMAN.
• Court: Alabama Supreme Court

31 So. 940

133 Ala. 242

FITZPATRICK v. BRIGMAN.

Supreme Court of Alabama

April 22, 1902

Ejectment by J. W. Brigman against Joseph Fitzpatrick. Judgment for plaintiff, and defendant appeals. Affirmed.

For a former appeal of the same case, see 30 So. 500.

The common source of title was admitted to be in one Isaac Price. The plaintiff introduced in evidence a quitclaim deed for the property sued for from Isaac Price to R. M. Buck, dated March 12, 1895, acknowledged March 19, 1895, and which was filed for record on September 27, 1899. He also introduced in evidence a warranty deed conveying the same lands from R. M Buck to T. G. Elder, which was acknowledged and recorded March 4, 1895; and also a warranty deed conveying the same lands from T. G. Elder to plaintiff, J. W. Brigman, which deed was dated, acknowledged, and filed for record on March 24, 1898. The defendant introduced in evidence a quitclaim deed to the property in controversy from Isaac Price to the defendant, dated April 26, 1898, acknowledged April 27, 1898 and filed for record November 28, 1898. It was shown that at the time of the second trial Isaac Price was dead. The testimony given by said Isaac Price on the former trial of the cause was introduced in evidence upon the second trial after the remandment of the cause by the supreme court. In giving his testimony said Price stated that he left the deed to Buck with his attorney, Mr. Selheimer, about the date the deed was signed, but did not remember anything that was said at the time; that he did not deliver the deed to Buck in person; that there was a trade between him and said Buck in which Buck was to convey to him certain property, and he was to convey to Buck the lots involved in this controversy; that Buck made him a deed to the property, and thereupon, in consummation of the trade, he made the deed from him to Buck introduced in evidence, and that he took possession of the land deeded to him by Buck. H. C. Selheimer, Esq., was introduced as a witness, and he testified that he represented Isaac Price as his attorney in the negotiations between Price and Buck in the exchange of the lands; that he did not remember what was said by Price when the deed was left with him; that the negotiations with reference to the exchange of lands between Price and Buck were going on for several months, and the parties frequently met at his office; that the trade was finally closed; that Buck executed a deed to certain lands to Price, and Price paid Buck some money in cash and executed the deed conveying the lots in controversy to Buck; that he did not hold the deed for safe-keeping for Price; that he had forgotten about the deed being left with him by Price until the purchase of the lots in controversy by the plaintiff in the present suit; that no one had called for the deed, or requested its delivery, prior to that time. The witness Selheimer was asked "whether or not Buck had made and delivered all the deeds required of him in said contract [[between Price and Buck] prior to the execution of the deed from Price and wife to Buck." This question was objected to by the defendant upon the ground that it called for the conclusions of the witness, and was incompetent and illegal. The court overruled the objection, and the defendant duly excepted. The witness answered that Buck had made all the deeds, as required of him in said contract, before Price's deed to him was executed. Thereupon the witness was asked the following question: "If anything remained to be done by either party after Buck delivered the deeds to him called for" in the contract. The defendant objected to this question upon the same grounds as were interposed to the previous question. The court overruled the objection, and the defendant duly excepted. The witness answered that nothing remained to be done except the execution of the deed...