Fowler v. Prichard

CourtSupreme Court of Alabama
Writing for the CourtSIMPSON, J.
Citation41 So. 667,148 Ala. 261
Decision Date14 June 1906
PartiesFOWLER ET AL. v. PRICHARD ET AL.

41 So. 667

148 Ala. 261

FOWLER ET AL.
v.
PRICHARD ET AL.

Supreme Court of Alabama

June 14, 1906


Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

"To be officially reported."

Action by Laura Fowler and others against Irene Prichard and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

This was an action of forcible entry and detainer begun in the justice court by appellants against appellees. The defendants in the justice court filed their petitions and affidavits as required by sections 2147, 2148, Code 1896, and thereupon the cause was removed to the circuit court. The plaintiff made a motion in the circuit court to try first the issue as to whether or not the entry was made upon the premises by the defendant by force. The court overruled this motion and required the trial to proceed as in an action in the nature of ejectment. A great many assignments of error were based upon the introduction of evidence. The first assignment of error relates to the refusal of the court to permit the introduction of the return on the notice to quit of the bailiff as to Mrs. Loretta Fowler, one of the defendants. The evidence shows that notice was served on the other two defendants, but the bailiff did not know whether service was perfected on Mrs. Fowler or not, but testified that it was on some lady. George Norris testified that the day after the defendant moved on the premises he went there to see Mrs. Pritchett, and found a chain around the top of the gate. "There was a man standing there, a big stout fellow. I afterwards found his name was Broadus. I did not know who he was, and stepped in there; and he said, 'You cannot go in here,' and I said, 'Why not?' " Defendants objected to the conversation between Norris and Broadus. Plaintiffs stated to the court that they expected to show by this conversation that this man Broadus was a guard retaining the property by force under the authority of the defendants. The court sustained the objection and excluded the testimony. Mrs. Loretta Fowler, testifying, said that she was a daughter of John P. Fowler, and that he was living in 1888 on the place in controversy and became paralyzed. She was asked by defendants' counsel what was the condition of his mind at that time. Plaintiffs' counsel objected to the question, and to the entering into the question of the insanity of John Fowler at this time, because it relates rather to the issue concerning the title of the parties than the possession, and is therefore irrelevant, incompetent, and immaterial. The other facts sufficiently appear in the opinion.

The plaintiffs requested the following written charges, which the court declined to give: "(1) The court charges the jury that the possession of the property in controversy which was obtained by the defendants was a scrambling possession, not obtained in good faith. (2) The court charges the jury that if they believe from the evidence that the defendants' possession of the lands in controversy was a scrambling possession when obtained, they ought to find a verdict for the plaintiffs." (3) General affirmative charge. "(4) The court charges the jury that the force necessary to open an unlocked, but closed, gate is force within meaning of the law; and, if the jury believe from the evidence that the defendant had to shove open or move gates to get into possession of the property in controversy, such taking or possession was by force and would entitle plaintiff to recover. (5) If the jury believe from the evidence that said John Fowler had sufficient mental capacity to comprehend the nature of his act when he made the deeds to his brothers George and Cornelius, and that the same was procured to be made without any fraud upon said John, the jury ought to find a verdict for the plaintiff, although the jury further believe from the evidence that one of the considerations therefor was a contract to support said John, which was subsequently broken in whole or in part, if it was broken. Such breach of contract, if any breach occurred, would not invalidate said deed in this court, which is a court of common law. (6) The court charges the jury that, if they believe that John Fowler had mental capacity to comprehend the nature of his act when he made said deed to his brothers, George and Cornelius, they ought to find a verdict for the plaintiff, although they may also believe from the evidence that the procuring of said deed to be made was a fraud upon said John. If he had such capacity to comprehend the nature of his act in making said deed, both said John and his heirs are barred by the statute of limitation of one year and ten years to claim that the same is fraudulent. (7) The court charges the jury that it is without conflict in this case that the plaintiffs, or one of them, was in possession of the property in controversy immediately prior to the entry thereon by these defendants; and if the jury believe from the evidence that the defendants are guilty of a forcible entry and detainer thereof, as defined by the court, you ought to find a verdict for the plaintiff, regardless of the question whether John Fowler had sound mental capacity or not, and regardless of whether said deed from him to his brothers, George and Cornelius Fowler, was fraudulent or not." As to this charge the court marked the same "Given," but inadvertently handed the same to the clerk with the refused charges, telling the clerk that these were refused charges, which the clerk put in...

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7 practice notes
  • Batson v. State, 6 Div. 798
    • United States
    • Supreme Court of Alabama
    • May 26, 1927
    ...action. Ala. Const. Co. v. Wagnon Bros., 137 Ala. 389, 34 So. 352; Barnewall v. Murrell, 108 Ala. 366, 18 So. 831; Fowler v. Pritchard, 148 Ala. 261, 269, 41 So. 667. The statement of the clerk injected into the record proper, to the effect that said charges in writing were requested by the......
  • Georgia Cotton Co. v. Lee, 4 Div. 625
    • United States
    • Supreme Court of Alabama
    • May 18, 1916
    ...Shepherd v. Sartain, 185 Ala. 439, [72 So. 160] Phillips v. Pippin, 4 Ala.App. 426, 58 So. 111; Fowler et al. v. Pritchard et al., 148 Ala. 261, 41 So. 667; Griffin v. State, 129 Ala. 93, 29 So. 783; First Nat. Bank v. Lippman, 129 Ala. 617, 30 So. 19; Allen v. State, 79 Ala. 34; Foxworth v......
  • Daniel v. Williams
    • United States
    • Supreme Court of Alabama
    • April 25, 1912
    ...an unlawful detainer by defendants, or else to show a title in himself superior to that of defendants. Code, § 4285; Fowler v. Pritchard, 148 Ala. 261, 41 So. 667. The material facts, as shown by the bill of exceptions, are substantially as follows: In 1857 plaintiff bought of one Williams ......
  • Phillips v. Pippen
    • United States
    • Alabama Court of Appeals
    • February 6, 1912
    ...The question as to whether the money was paid upon a forged order [4 Ala.App. 430] was not before the jury. Fowler v. Pritchard, 148 Ala. 261, 41 So. 667; Duffie v. Phillips, 31 Ala. 571; East v. Pace, 57 Ala. 524; First National Bank v. Lippman, 129 Ala. 617, 30 So. 19; Foxworth v. Brown, ......
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7 cases
  • Batson v. State, 6 Div. 798
    • United States
    • Supreme Court of Alabama
    • May 26, 1927
    ...action. Ala. Const. Co. v. Wagnon Bros., 137 Ala. 389, 34 So. 352; Barnewall v. Murrell, 108 Ala. 366, 18 So. 831; Fowler v. Pritchard, 148 Ala. 261, 269, 41 So. 667. The statement of the clerk injected into the record proper, to the effect that said charges in writing were requested by the......
  • Georgia Cotton Co. v. Lee, 4 Div. 625
    • United States
    • Supreme Court of Alabama
    • May 18, 1916
    ...Shepherd v. Sartain, 185 Ala. 439, [72 So. 160] Phillips v. Pippin, 4 Ala.App. 426, 58 So. 111; Fowler et al. v. Pritchard et al., 148 Ala. 261, 41 So. 667; Griffin v. State, 129 Ala. 93, 29 So. 783; First Nat. Bank v. Lippman, 129 Ala. 617, 30 So. 19; Allen v. State, 79 Ala. 34; Foxworth v......
  • Daniel v. Williams
    • United States
    • Supreme Court of Alabama
    • April 25, 1912
    ...an unlawful detainer by defendants, or else to show a title in himself superior to that of defendants. Code, § 4285; Fowler v. Pritchard, 148 Ala. 261, 41 So. 667. The material facts, as shown by the bill of exceptions, are substantially as follows: In 1857 plaintiff bought of one Williams ......
  • Phillips v. Pippen
    • United States
    • Alabama Court of Appeals
    • February 6, 1912
    ...The question as to whether the money was paid upon a forged order [4 Ala.App. 430] was not before the jury. Fowler v. Pritchard, 148 Ala. 261, 41 So. 667; Duffie v. Phillips, 31 Ala. 571; East v. Pace, 57 Ala. 524; First National Bank v. Lippman, 129 Ala. 617, 30 So. 19; Foxworth v. Brown, ......
  • Request a trial to view additional results

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