Harden v. Collins

• Decision Date: 17 November 1903
• Citation: 35 So. 357,138 Ala. 399
• Parties: HARDEN v. COLLINS.
• Court: Alabama Supreme Court

35 So. 357

138 Ala. 399

HARDEN v. COLLINS.

Supreme Court of Alabama

November 17, 1903

Appeal from Circuit Court, Coosa County; A. H. Alston, Judge.

Action by Mary A. Collins against G. W. Harden. From a judgment for plaintiff, defendant appeals. Reversed.

This was an action of unlawful detainer brought by the appellee Mary E. Collins, against the appellant, G. W. Harden, to recover the possession of certain lands described in the complaint. As stated in the opinion, the cause was removed on the defendant's petition into the circuit court for the trial of title to the land involved in the suit, as provided by statute. In the circuit court the cause was tried upon issue joined on the plea of the general issue. On the trial of the case the plaintiff introduced in evidence a deed from W. C. Norrell and defendant to J. H. Collins and Mary A Collins, the plaintiff, conveying the lands involved in the controversy. There was evidence introduced tending to show that under this deed she and her husband, J. H. Collins, went into possession of said lands, and at the time of the execution of said deed she and said J. H. Collins executed a mortgage upon said lands to W. C. Norrell; that this mortgage was foreclosed, and at the foreclosure sale G. W. Harden became the purchaser of said land, and received a deed thereto from said W. C. Norrell. The plaintiff introduced evidence tending to show that said purchaser, the defendant in the present suit, never made a demand upon her for the possession of said land; that he did make demand upon her husband; that after said purchase the plaintiff tendered to the said Harden the purchase price, together with 10 per cent. damages, and also offered to pay him all lawful charges, which included the permanent improvements made upon said property by said Harden, but that said Harden refused to accept the tender, and declined to fix a value, or to agree upon disinterested parties fixing a value, upon the improvements made. This evidence is sufficiently stated in the opinion. The defendant introduced evidence tending to show that he made a demand upon both the plaintiff and her husband, J. H. Collins, for the possession of the land after he had purchased the same at the foreclosure sale, and that each of them refused to surrender possession; that the plaintiff never made a tender to the defendant of the purchase price paid by him at the foreclosure sale, together with 10 per cent. damages and all lawful charges; that the only offer to pay lawful charges, which included permanent improvements he had made upon the land, was made upon a condition, which is stated in the opinion. There was also evidence introduced tending to show that, at the time of the execution of the deed from W. C. Norrell and wife to J. H Collins, the name of the plaintiff, Mary A. Collins, was not in said deed, but was written in the deed after its delivery. The plaintiff, in rebuttal, introduced evidence tending to show that her name was written in said deed at the time it was delivered. The court, at the request of the plaintiff gave to the jury the following written charge: "If the jury believe from the evidence that Mrs. Collins had not failed to give possession on demand made, and if they further believe that Mrs. Collins tendered the amount paid by Harden, with ten per cent. interest, then they must find for the plaintiff, unless the jury believe from the evidence that the defendant claimed at the time of the tender the taxes he had to pay, and Mrs. Collins refused to pay it." The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following charges requested by him: "(1) If the jury believe all of the evidence, they will find for the defendant. (2) If the jury should find that the plaintiff is entitled to recover in this case, she can only recover a one-half interest in the lands sued for. (3) If the deed from Norrell to Collins was executed and delivered to J. H. Collins when only the name of J. H. Collins was in the same as grantee, the subsequent adding of the plaintiff's name in the deed would not pass any title, and the plaintiff could not recover in this action." "(5) Before the plaintiff in this case can recover, she must show to the reasonable satisfaction of the jury that she tendered to the defendant the full amount due on the mortgage, with ten per cent. per annum and all lawful charges, of which lawful charges the taxes on the lands are one." There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Felix L. Smith and J. M. Chilton, for appellant.

W. M. Lackey and Jno. W. Batson, for appellee.

McCLELLAN C.J.

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