Gaston v. Weir

• Decision Date: 22 March 1888
• Citation: Gaston v. Weir, 84 Ala. 193, 4 So. 258 (Ala. 1888)
• Parties: GASTON ET AL. v. WEIR.
• Court: Alabama Supreme Court

4 So. 258

84 Ala. 193

GASTON ET AL. v. WEIR.

Supreme Court of Alabama

March 22, 1888

Appeal from circuit court, Wilcox county; JOHN MOORE, Judge.

This was a statutory real action in the nature of ejectment brought by Hugh G. Weir against the appellants, David F Gaston, Sr., and David F. Gaston, Jr., for the recovery of 40 acres of land described in the complaint.The defendants pleaded not guilty; disclaimer except as to 9 3/4 acres of the lands sued for; and possession of ten years.Issue was joined on all of these pleas, and judgment was rendered in favor of the plaintiff.The defendants take the appeal, and assign as error the several rulings of the lower court, as shown by the opinion of this court.

John Y. Kilpatrick, for appellants.

Alex, D. Pitts, for appellee.

STONE C.J.

The present suit, as narrowed down by the pleadings, is a statutory real action for the recovery of 9 3/4 acres of land.It is described as lying and being in the south-east corner of the north-west quarter of the north-west quarter of section one, (1,) township fourteen, (14,) range six, (6,) Cahaba land district.Such is the description in the pleadings.Each party claims to be a derivative purchaser from Spiva as a common source.Plaintiff's chain of title is as follows: Spiva conveyed to Ballard in 1859; Ballard to Oxford in 1860, and Oxford to plaintiff, Weir, in 1870.The description in each of these conveyances is substantially the same.Its language is, "forty-seven and a fourth acres of the west part of the north half of the north-west fourth of section one."It is objected for appellant, defendant below, that this description does not embrace the lands sued for.We cannot assent to this.The north half of the north-west quarter (eighty acres) necessarily includes the north-west quarter, (forty acres.)Forty-seven acres of the west part of north half must be that much taken off the west end of the eighty acres, and, unexplained, must be marked off as a parallelogram.Wilkinsonv.Roper, 74 Ala. 140.The deeds not only convey all of the north-west quarter.(N.W. 1/4) of north-west quarter, (N.W. 1/4), but prima faciethey convey seven acres off the west side or part of the north-east quarter (N. E. 1/4) of the north-west quarter, (N.W. 1/4).Each of the deeds embraces the land sued for.After the three deeds were put in evidence, and after the defendant had introduced his testimony, he moved to exclude the said three deeds constituting plaintiff's chain of title, "because said 9 3/4 acres of land is not sufficiently described in either of said deeds, and because the land described in each of said deeds does not embrace the 9 3/4 acres of land in dispute."This was the sole ground stated for the exclusion.We have shown this ground is untenable, and the circuit court did not err in overruling the motion.

It is urged before us that the deeds were inadmissible in evidence on account of defects in the certificates, and on some other grounds.The exclusion having been moved for on a single specific ground, this was a waiver of all others, and we cannot consider them.Jaquesv.Horton, 76 Ala. 238;3 Brick. Dig. p. 444, § 574;Floydv.State, 82 Ala. 16, 2 South. Rep. 683.The plaintiff made a prima facie case for recovery.The defense is placed on two grounds: First, That Weir, the plaintiff, had divested himself of all title, and therefore could not maintain the suit.In January, 1873, Hugh G. Weir attempted to convey the land directly to his wife, Sarah G. Weir, and executed a deed to her for that purpose.This had no effect or operation as a conveyance of the legal title, but left it in Hugh G. Weir, the husband.McMillanv.Peacock, 57 Ala. 127;Meyerv.Sulzbacher, 75 Ala. 423;Powev.McLeod, 76 Ala. 418.Second.Another attempt was made to convey the title in October, 1882.The attempted conveyance in this instance was signed by Sallie G. Weir, the wife, and Hugh G. Weir, the husband, M. C. Weir being named as grantee.This deed is formal in all respects, except that Hugh G. Weir is not named in the body of the instrument as a grantor.This paper is ineffectual to divest title out of H. G. Weir.Harrisonv.Simons, 55 Ala. 510;Hammond...