Goodson v. Brothers

• Decision Date: 10 June 1896
• Parties: GOODSON ET AL. v. BROTHERS.
• Court: Alabama Supreme Court

20 So. 443

111 Ala. 589

GOODSON ET AL. v. BROTHERS.

Supreme Court of Alabama

June 10, 1896

Appeal from city court of Anniston; B. F. Cassady, Judge.

Ejectment by D. P. Gunnells against J. A. Goodson and others. From a judgment for plaintiff, defendants appealed, pending which the death of appellee was suggested, and the cause revived against his administrator, Samuel D. G. Brothers. Reversed.

This was a statutory action of ejectment, brought by D. P Gunnells against J. A. and M. A. Goodson. Upon motion, J. J Swope was admitted to defend as landlord of Goodson. J. A Goodson filed a plea of disclaimer, and M. A. Goodson and J J. Swope filed a plea of the general issue, and upon this plea issue was joined, and the trial was had.

After the parties had announced ready for trial, and the jury had been impaneled and accepted by the plaintiff, the defendant's attorney demanded a struck jury, which was refused, and to this ruling the defendant duly excepted. The plaintiff, as a witness in his own behalf, testified that he went into possession of the land sued for December 1, 1862. He was asked: "Did you purchase the land?" To this defendant objected, and duly excepted to the court's overruling his objection; and upon the witness answering that he did purchase the land, the defendant moved the court to exclude the answer, and excepted to the court's overruling his motion. This ruling of the court constituted the ground of the fourth assignment of error. The plaintiff as a witness, was then asked: "From whom did you buy the land?" The defendant objected to this question, and duly excepted to the court's overruling his objection; and upon the plaintiff answering, "From Pinkney Harrison who made me a deed," the defendant moved to exclude the answer, and duly excepted to the court's overruling his motion. This constitutes the basis of the fifth assignment of error. The plaintiff then offered in evidence a bond for title from Pinkney Harrison to William Witt, which bond for title was neither witnessed nor acknowledged, but was transferred by Witt to the plaintiff. The defendant objected to this bond for title, on the ground that it was not witnessed, and because the transfer thereof was not witnessed. Upon plaintiff testifying "that he saw Witt sign the transfer," the court overruled the defendant's objection, and allowed the bond for title to be introduced in evidence, and to this ruling the defendant duly excepted. This ruling constitutes the basis of the sixth assignment of error. The plaintiff was allowed, against the objection and exception of the defendant, to testify that Witt signed the transfer to him; and plaintiff then offered in evidence a deed from Pinkney Harrison to plaintiff, and another deed from Ware & Ware to Harrison, these deeds conveying the lands in controversy. The plaintiff then offered a transcript of the judgment against the plaintiff, and the sheriff's deed to Higgins. The defendant objected to the introduction of the sheriff's deed in evidence, on the ground that the deed did not describe the land sued for, and because it had been altered, by changing the description of the land from the N.E. 1/4 to the S.E. 1/4. This objection was overruled, and the defendant duly excepted. This ruling constitutes the ground of the seventh assignment of error. The plaintiff then offered in evidence a deed from Higgins to Cunningham, and a deed from Cunningham to plaintiff. The defendant objected to the introduction of each of these deeds in evidence, upon the same grounds of objection as to the introduction of the sheriff's deed in evidence. The plaintiff testified, in this connection, that he had made this charge in the description of the land in order to make the deed properly describe the lands intended to be conveyed thereby. The court overruled the defendant's objection to the introduction in evidence of these deeds, and the defendant excepted. This ruling constitutes the basis of the ninth assignment of error. The plaintiff then testified that the land in controversy was broken and rocky; that only 10 or 15 acres had ever been cleared, and had been cultivated; that in the spring of 1865 the fences had been burned, and the land had never been inclosed since; that he never lived on said land, or had a tenant on it, but that he cut firewood from it, and sold timber from it, and had allowed other people to cut wood therefrom, and in the year 1869 had allowed a house to be built thereon; that he had paid taxes on said land since he received his first deed, and had had the lands surveyed; that he had claimed the lands ever since he had received his first deed; and that it was generally known and considered as belonging to him. To this last statement the defendant duly excepted, and moved the court to exclude it from the evidence. The court overruled the objection and motion, and the defendant duly excepted. This ruling constitutes the basis of the twelfth assignment of error. Against the objection and exception of the defendant, the plaintiff was allowed to testify "that Smart's name, as a witness to the deed from Harrison to plaintiff, was in Smart's handwriting." The court overruled the defendant's motion to exclude these statements, and the defendant duly excepted. This constitutes the ground for the eleventh assignment of error. The evidence for the defendant tended to show that George Swope, the father of the defendant J. J. Swope, owned the land, and lived on it from 1851 to 1858, when he died; that J. J. Swope is his only heir; that the land had always been known as the "Swope Land." One of the witnesses for the defendant testified that in 1875 he tried to purchase the land in controversy from the plaintiff, but that the plaintiff told him he could not make him title to the land, as he did not own it. There was other evidence for the defendant tending to show that there had been no acts of ownership over the lands by the plaintiff for five or ten years preceding the trial, but that the land had been known and occupied, from the time of George Swope's death,...