Hancock v. Kelly

• Decision Date: 21 February 1887
• Citation: 2 So. 281,81 Ala. 368
• Parties: HANCOCK v. KELLY AND ANOTHER.
• Court: Alabama Supreme Court

2 So. 281

81 Ala. 368

HANCOCK v. KELLY AND ANOTHER.

Supreme Court of Alabama

February 21, 1887

Appeal from circuit court, Madison county.

Statutory real action in the nature of ejectment.

This was a real action in the nature of ejectment, under the statutes of Alabama, by the appellant, Julia J. Hancock against the appellees, Emmett Kelly and Solon Kelly, and is now before this court for the second time. See Kelly v. Hancock, 75 Ala. 229. The pleas were, in short, (1) by consent; (2) not guilty; (3) statute of limitations of 10 years; and (4) statute of limitations of 20 years. In 1856 Robert Hancock died intestate in Madison county, Alabama, seized and possessed in fee-simple of 640 acres of land, out of which the land in controversy (213 1/3 acres) was, April 4, 1857, duly assigned to the plaintiff Julia J. Hancock, the widow of the decedent, as her dower. John Seay, the administrator of the estate of said decedent sold, October 18, 1858, under an order of court, the reversion in said dower lands, together with the fee of the balance of said tract of 640 acres, to William M. Gooch. The plaintiff testified that, after said land had been assigned her as dower, she orally authorized John Seay, the administrator, to sell her dower interest therein for $4,000 telling him that she would make a conveyance of it when she received that sum; that she received through said Seay $2,000 in part payment for said dower interest, and thereafter, in January or February, 1858, she went to Winchester, Tennessee to educate her children, and about that time William M. Gooch went into the possession of said dower lands, together with all of said tract of 640 acres; that she never received any more of the purchase money of her dower interest, or any paper writing in reference to the sale of it; that in March, 1867, she returned from Tennessee, and from that time till January, 1881, lived in the residence on said dower land, claiming and holding the same as her dower; that from the time of her return, in March, 1867, until his death, in November, 1880, her son John W. Hancock lived with her on said land, claiming the reversion in said dower land, and the fee in the remainder of said 640 acres, for himself and for his infant brother, Robert H. Hancock, and during said time said John W. Hancock recognized her dower interest in said land, and, in consideration of the use thereof, supported her, and paid the taxes thereon; that a week or two after the death of said John W. Hancock, Robert L. Pulley, who conveyed to the defendants, visited her, and informed her that he had a mortgage on all her son's property, and she informed said Pulley of her dower interest, and claimed a right to a home on the dower land as long as she lived, to which he replied, "No; a mortgage is before anything," and she, believing this to be true, and having been informed that the family grave-yard had been reserved, she got a Mrs. Smith to step off a half acre, the extent of said grave-yard, to ascertain if it included an office or small building in the yard, and had notice of her claim to said half acre given at the sale under the mortgage of Pulley; and when defendants, who were purchasers at said mortgage sale, moved into the dwelling-house on said land, she moved into said office, and remained there several days, and until notified by defendants to move out; and that the roads being bad, and Huntsville 10 miles distant, she had no opportunity to consult a lawyer as to her rights until a short time before bringing the suit. The plaintiff admitted that she had never presented any claim for the balance of the purchase money of her dower to any administrator of the estate of William M. Gooch, nor filed the same against his insolvent estate, because the land was bound for the payment of the purchase money.

Amanda Wade, a witness for the plaintiff, testified that she lived within three miles of the land sued for during said period of time from March 20, 1867, to the death of John W. Hancock, in 1880; that plaintiff and said Hancock lived together on said land during that time, and witness was on terms of close intimacy with them, and knew how they held the lands sued for; that during the whole of said time the plaintiff claimed a dower interest in said land, and John W. Hancock claimed only the reversion therein, and the fee of the balance of said 640 acres; that on her visits to them, which were frequent and sometimes prolonged, she repeatedly heard John W. Hancock refer to said land as his mother's dower, and on one occasion she asked him why he did not improve a certain red hill on the land sued for, and he replied that it was his mother's dower. This witness also testified that, at the mortgage sale to defendants, a claim to the half acre of land embracing the grave-yard was announced, at the request of plaintiff. Harriet Wade, a witness for the plaintiff, testified substantially as Amanda Wade, except as to the notice of the claim of said half acre, as to which she did not testify. William Johnson, colored, a witness for the plaintiff, testified that he was a farm-hand under John W. Hancock from the time he moved on said land, in 1867, until his death, in 1880; and during that time the plaintiff lived with said John W. Hancock, on said land, claiming the land sued for as her dower; and that John W. Hancock did not claim said dower land, but always referred to it as "mother's dower."

The defendants introduced in evidence the certified transcript of the records of the chancery court of Madison county in the cause of John W. Hancock et al. v. Edward E. Douglass, as Administrator of the Estate of William M. Gooch et al. As was shown by this record, this was a bill filed by the heirs and administrator of Robert Hancock, the deceased husband of plaintiff, against the administrator and heirs of Gooch, to enforce a vendor's lien on the lands purchased by Gooch at the sale by John Seay, as administrator of the estate of said Robert Hancock. The bill set forth the extent of Gooch's purchase; that it embraced only the reversion in that part of the land which had been allotted to the plaintiff as dower; and averred the allotment of dower to the plaintiff, describing it by numbers, metes, and bounds. The chancellor decreed a sale of the entire tract, without mentioning the dower claim, or any particular estate in any of the land, and the sale and conveyance under the chancellor's decree were made in the same way. The plaintiff was made a defendant to the bill, but neither answered nor made other defense. At the sale under this decree, which took place in 1867, John W. Hancock became the purchaser, and received the conveyance, and immediately went into possession of the land. The defendants also introduced in evidence the record of the report and decree of insolvency of the estate of William M. Gooch, and a list of claims filed against the insolvent estate, showing none for the plaintiff; the record of a mortgage executed by John W. Hancock to Robert L. Pulley, embracing the land in controversy, without mentioning the plaintiff's dower estate; and a deed of conveyance embracing said land, without mentioning said dower estate, executed by said Pulley to the defendants under the sale on said mortgage; and also records of conveyances of the land in controversy, with warranty of title in fee, by John W. Hancock, to secure payments of debts to the following parties, respectively: T. P. Ward, John M. Eldridge, and John W. Barclay, dated, respectively, March 22, 1872, October 4, 1875, and October 4, 1875.

The defendants introduced in evidence the record of a deed of trust to John W. Scruggs, purporting to have been executed June 18, 1858, by the plaintiff, for the purpose of securing James H. Scruggs and John Seay as accommodation indorsers of a bill of exchange for $2,674.62, drawn by the plaintiff on Messrs. Scruggs, Donegan & Co., of New Orleans, Louisiana, dated at Huntsville, Alabama, June 17, 1858, and payable at 90 days to said James H. Scruggs. This deed of trust recited that it should apply to any renewal of the bill of exchange mentioned therein, and attached to it was a certificate of acknowledgment thereof, puporting to be by the plaintiff, in due form, before J. M. WILSON, a justice of the peace of Madison county, dated June 18, 1858. The plaintiff in her testimony denied the execution of this deed of trust, and of this bill of exchange recited therein, and any knowledge of either; but stated that she had an impression that John Seay told her that the $2,000 which he paid her had to be raised through the Scruggs, Gooch's sureties. The defendants produced two books of the firm of Scruggs, Donegan & Co., who had an office in Huntsville, Alabama, and also in New Orleans, Louisiana, and offered in evidence two entries in these books, marked, respectively, "Huntsville Office," and "New Orleans Office." The nature of these entries, and the preliminary proof thereof, are stated in the opinion. The plaintiff objected separately to each entry, the court overruled the objections, and the plaintiff separately excepted.

John Seay, a witness for the defendants, testified that he was administrator of the estate of Robert Hancock during the years 1858 and 1859; that the plaintiff sold her dower interest in the land in controversy to William M. Gooch for $3,000, all of which had been paid, and that it was paid partly in cash, and the remainder was raised by the bill of exchange referred to in said deed of trust from plaintiff to John W. Scruggs, the payment of which was provided for by William M. Gooch. Said Seay further testified that "she [plaintiff] made a conveyance to Gooch of her dower interest in said land." The court overruled plaintiff's motion to exclude this evidence, and plaintiff e...