Gilley v. Denman

• Decision Date: 04 December 1913
• Citation: 64 So. 97,185 Ala. 561
• Parties: GILLEY et al. v. DENMAN.
• Court: Alabama Supreme Court

64 So. 97

185 Ala. 561

GILLEY et al. v. DENMAN.

Supreme Court of Alabama

December 4, 1913

Appeal from Circuit Court, Cleburne County; E.J. Garrison, Judge.

Ejectment by J.A. Denman against W.L. Gilley and J.A. Brown. Judgment for plaintiff, and defendants appeal. Affirmed.

The issues raised are sufficiently stated.

The following are the first six assignments as to evidence: (1) Overruling defendant's motion to exclude the testimony of Mrs. Denman, "Yes, sir; I reckon it was; I can't read or write, but I reckon I put it here," in answer to the question, "Was your name put to any paper, do you know?" (2) Overruling defendant's motion to exclude testimony of same witness, "Well, he wanted my husband to give him a deed to the land, and he could get money on it and run a mule pen, and go halvers, and I refused to sign it and they threatened to abandon me and the children." (3) Objection to the answer of same witness: "My children were then present. My husband threatened me, and Gilley told me he would abandon me and the children, and he would never held me, and we could not get along." (4) Testimony of same witness: "My husband told me that if I did not sign the deed to that land he would have John Brown sell it out from under me, and would abandon me and the children." (5) Question to same witness: "What was done then?" Answer: "He wanted to know if I was going to sign the deed, and I told him no I was not." (6) Answer of same witness: "He said he would make me do it. If I did not sign it, he would quit me and the children, and also told me he would whip me if I did not sign it." The other assignments appear from the opinion.

The following charges were given at plaintiff's request:

"(1) Even if the jury should believe from the evidence that Gilley and Denman designed to execute the deed for the purpose of defrauding creditors, yet if Mrs. Denman did not participate in such design, and if you should further believe that Mrs. Denman executed said deed under coercion from Denman, participated in by Gilley, before the execution of the deed, and that Brown knew of or was put on notice of the transaction between the Denmans and Gilley such as would have informed him of such coercion, your verdict should be for plaintiff.

"(2) I charge you that if such threats were made by Denman and Gilley, or by Denman alone, of which Gilley knew before he received his deed, as overcame the mind and volition of Mrs. Denman so as to cause her to execute the deed to Gilley, then it would be void even if she went before the justice of the peace, and acknowledged that she signed it of her own free will and accord, and no title passed to the defendant generally, if Brown had notice of such threats, and of the circumstances under which Mrs. Denman signed the deed, or had such notice as to put him on inquiry, which, if pursued, would have informed him of such threat.

"(3) If you believe from the evidence that the deed from Denman to Gilley is void, and that no consideration passed from defendant Brown to Gilley, the deed to Brown is void, and your verdict should be for the plaintiff."

Merrill & Vann, of Heflin, for appellants.

Blackwell & Agee, of Anniston, for appellee.

SOMERVILLE J.

The appellee brought an action of ejectment against W.L. Gilley in August, 1910. In September, 1911, John A. Brown, on his own motion, was "made defendant in this case instead of W. L. Gilley," as the judgment entry recites. The bill of exceptions shows that only one defendant participated in the trial, and reserved exceptions to the rulings of the court, and the judgment is "that the plaintiff, J.A. Denman, have and recover of the defendant, John A. Brown, the land sued for," etc. The appeal, as shown by the bond and certificate in the transcript, was taken and is prosecuted jointly by W.L. Gilley and J.A. Brown; and all alleged errors are jointly assigned by them. Had the judgment run against Gilley and Brown jointly, the assignments of error could not be sustained as to Gilley; and, if bad as to him, they would be overruled as to both appellants. This is a rule of appellate practice often declared and constantly enforced by thismcourt. McGehee v. Lehman, Durr & Co., 65 Ala. 316; Kimbrell v. Rogers, 90 Ala. 346, 7 So. 241; Beacham v. A.S.P. Mfg. Co., 110 Ala. 555, 18 So. 314; Davis v. Vandiver, 160 Ala. 454, 49 So. 318, and numerous other authorities. We are of the opinion, however, that where, as here, one of the nominal appellants was not a party to the judgment, his joinder in the other's assignments of error should be simply disregarded as redundant and immaterial, and without prejudice to the consideration of the assignments on their merits.

The land in suit was the homestead of plaintiff, and defendant's claim is founded upon a deed executed by plaintiff and his wife to W.L. Gilley, who in turn executed a deed to defendant There is no defect in the form of the deed or its certificate of acknowledgment, but its validity is impeached by plaintiff on the ground of fraud or duress in the procurement of the wife's signature and acknowledgment, participated in by both himself and the grantee. This was the primary issue in the case, and if plaintiff affirmatively established this contention, he was entitled to a verdict, unless defendant showed that he was a purchaser for value from Gilley. In that event plaintiff could have recovered only upon his showing that defendant purchased with knowledge or notice of the infirmity of Gilley's deed. Ely v. Pace, 139 Ala. 293, 35 So. 877; Moog v. Strang, 69 Ala. 98.

The first 13 assignments of error are based on the admission of testimony against defendant's objection. The issues involved a consideration of the circumstances accompanying and leading up to the execution of the deed by Mrs. Denman and of acts of coercion on the part of her husband and of Gilley, the grantee. As there was ample evidence for a...