Fowler v. Prichard

Decision Date14 June 1906
Citation41 So. 667,148 Ala. 261
PartiesFOWLER ET AL. v. PRICHARD ET AL.
CourtAlabama Supreme Court

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 an envelope and filed away, and the same was never given to the jury. Plaintiff's counsel was ignorant of the fact that this charge was marked "Given," and reserved an exception to the court's action in refusing to give the same to the jury.

The court, at the request of the defendant, gave the following written charges: "(A) If the jury should believe from the evidence that, at the time of the purported execution of the deed offered in evidence by the plaintiffs as having been made by John Fowler was then insane--that is to say, of unsound mind to such an extent or degree as to incapacitate him from knowing and understanding the ordinary affairs of life or of transacting any business--and if he continued in that condition until his death, then the possession of George Fowler during such incapacity of John Fowler could not be adverse to John Fowler, and he could not claim adversely to John Fowler during the time of his incapacity by reason of his mental condition. (B) If the jury should believe from the evidence that, at the time of the making of the purported deed offered in evidence, John Fowler was insane--that is, of unsound mind to such an extent as not to know and comprehend at the time that he was signing a deed conveying his house and lot--then said deed would be absolutely void; and, if George Fowler entered into possession of the land under that deed, he could not claim the benefits of the statute of limitations or of adverse possession under that deed as color of title during the time John Fowler may have continued insane, and the statute of limitations or adverse possession would not begin to run in favor of George Fowler, or of his heirs, until the death of John Fowler."

R. W. Stoutz, for appellants.

L. H. & E. W. Faith, for appellees.

SIMPSON J.

This was originally an action before a justice of the peace, brought by the appellants against the appellees for forcible entry and detainer and unlawful detainer. The defendants (appellees) filed their petition in accordance with section 2147 of the Code of 1896, and the case was removed to the circuit court.

The first assignment of error insisted upon is that the court erred in overruling a motion made in the circuit court by the plaintiff to try first the issue made up as to whether the entry of the defendants upon the lands sued for was by force "before any inquiry is had * * * as to the respective strength of the legal title of the plaintiffs or defendants." Section 2147 gives the defendant the right to have the case removed to the circuit...

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7 cases
  • Batson v. State
    • United States
    • Supreme Court of Alabama
    • May 26, 1927
    ...... of such 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 ......
  • Georgia Cotton Co. v. Lee
    • United States
    • Supreme Court of Alabama
    • May 18, 1916
    ...... production was not necessary. 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. ......
  • Daniel v. Williams
    • United States
    • Supreme Court of Alabama
    • April 25, 1912
    ...... 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:. ......
  • Phillips v. Pippen
    • United States
    • Alabama Court of Appeals
    • February 6, 1912
    ...with its directions. The question as to whether the money was paid upon a forged order was not before the jury. Fowler v. Pritchard, 148 Ala. 261, 41 So. 667; Duffie v. Phillips, 31 Ala. 571; East Pace, 57 Ala. 524; First National Bank v. Lippman, 129 Ala. 617, 30 So. 19; Foxworth v. Brown,......
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