Garner v. Morris

• Decision Date: 11 June 1914
• Docket Number: 500
• Citation: 65 So. 1000,187 Ala. 658
• Parties: GARNER et al. v. MORRIS.
• Court: Alabama Supreme Court

65 So. 1000

187 Ala. 658

GARNER et al. v. MORRIS.

No. 500

Supreme Court of Alabama

June 11, 1914

Appeal from Circuit Court, Dale County; J.E. Acker, Special Judge.

Action by W.H. Morris against William Garner, revived against his executors. From a judgment for plaintiff, defendants appeal. Affirmed.

The following is the complaint:

Count 1: Plaintiff, W.H. Morris, claims of defendant William Garner the sum of $2,000 as damages for and on account of the breach by defendant of a certain covenant of warranty contained and embraced in a deed executed by defendant to plaintiff on October 4, 1907, and conveying to plaintiff the following described lands, to wit: The N. 1/2 of N.E. 1/4, S 18, S.E. 1/4 of S.E. 1/4, S. 7, S. 1/2 of S.W. 1/4 and N.W 1/4 of S.W. 1/4 and S.E. 1/4 of S.E. 1/4, S. 8, N.W. 1/4 and N. 1/2 of N.E. 1/4, S. 17; N.W. 1/4 and N. 1/2 of S.W. 1/4 and N. 1/2 of N.E. 1/4 and S.W. 1/4 of N.E. 1/4, and N.E. 1/4 of S.E. 1/4, S. 17, all in T. 3, R. 24. And plaintiff avers that in and as a part of said deed defendant did covenant with plaintiff that he was lawfully seised in fee of said premises, and that he had a good right to sell and convey the same to plaintiff, and did warrant and defend the title to same to plaintiff, his heirs and assigns, which warranty covenant, and agreement is breached by defendant, in that at the time of said conveyance said plaintiff did not own the title or right in and to the following part of said land, to wit, S. 1/2 of N.W. 1/4, S. 17, T. 3, R. 24, and N.E. 1/4 of S.E. 1/4, S. 16, T. 3, R. 24, and by reason of which plaintiff has been damaged in a large sum, to wit, $2,000.

Count 2: Same as 1 down to and including the description of the land, where they first occur therein, and adds:

And plaintiff avers that said covenant, warranties, and agreements have been broken, in that defendant at the time of such conveyance was not in possession of the following described lands, to wit [same as in count 1], and did not put plaintiff in possession of said lands to the damage of plaintiff in a large sum to wit, $2,000.

Count 3: Plaintiff claims the further sum of $400 from defendant, for that defendant, on October 4, 1907, executed to plaintiff a deed conveying to plaintiff the lands specifically described in count 1 of this complaint, and to that extent made a part of this count, in which conveyance and as a part thereof, defendant covenanted with plaintiff that he was seised in fee of said premises and had a good right to sell and convey the same and warranted the title thereto, which covenant was broken, in that, as to the 120 acres of land set forth in count 1, defendant had no title and failed to put said plaintiff in possession thereof, but the title thereto rested in other persons. And plaintiff would further aver and show that on October 17, 1907, he sold all the above-described lands to one E.M. King for a consideration then and there paid, and executed and delivered to said King a deed to the same containing the usual covenants or warranties, and the plaintiff derived whatever title he had to said lands thereto and under his deed from defendant herein. And plaintiff avers that on August 24, 1911, said King, his grantee, commenced suit against plaintiff in the circuit court of Geneva county, which court had jurisdiction of the parties and of the subject-matter of the litigation for and on account of a breach of warranty in said deed from plaintiff to said King. And plaintiff avers that he duly notified defendant of the existence of said suit, and called upon defendant to defend the same, and requested defendant to furnish counsel in its defense. And plaintiff would further show that the trial of said case between him and said King resulted in a verdict and judgment in favor of the said King and against the plaintiff for and on account of a breach of warranties of title as to said 120 acres specifically described in count 1, and that in the trial of said cause it was shown and established that said plaintiff in this cause did not at the time of the conveyance to King own the said 120 acres of land, and it was further established and shown in the trial of the said cause that said W.H. Morris, plaintiff herein, claims said land solely under his deed from defendant, and that at the time of the execution of the deed by defendant herein to the plaintiff herein the said William Garner had no right, title, or interest in and to the said 120 acres specifically set forth in count 1. And plaintiff avers that said Garner, under the facts herein, is concluded by said judgment of the circuit court of Geneva county as respects to title to the 120 acres of land. And plaintiff avers that said Garner failed and refused to defend said cause, and that plaintiff was compelled to and did employ counsel in defense of the same, and that plaintiff incurred expense of $150 therefor, a reasonable fee therefor is $150, and that the costs of the court for which plaintiff is liable in said suit is $41.03, all of which, in addition to the amount claimed in counts 1 and 2, is due plaintiff herein by defendant.

The following charges were given for plaintiff:

(1) If the jury believe from the evidence that Wynn claimed 920 acres in his home place, although he may not in fact have owned it, then you should find for plaintiff.

(2) If the jury believe from the evidence that Morris bought the land from Garner which is

in dispute, and that he paid him for it by the acre, and that it was agreed and understood that there were 920 acres, and they further believe that Garner kept and retained the money then plaintiff would be entitled to recover.

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