Hawkins v. Ross

• Decision Date: 04 December 1893
• Citation: 14 So. 278,100 Ala. 459
• Parties: HAWKINS v. ROSS.
• Court: Alabama Supreme Court

14 So. 278

100 Ala. 459

HAWKINS v. ROSS.

Supreme Court of Alabama

December 4, 1893

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Ejectment by Josiah Hawkins against Elmira Ross. Judgment for defendant. Plaintiff appeals. Reversed.

Upon the introduction of all the evidence, the court, in its oral charge to the jury, instructed them as follows: "There was a deed sought to be proven, purporting to be executed by Elbert Armstrong to J. H. Ross. That deed was not proven, and does not, therefore, convey any title to the land. Its execution and contents were not proven. For what purpose then, were the admissions of Mrs. Ross, that she had such a deed in her possession, evidence against her? Simply to show the fact that she recognized the title of her husband. With regard to this admission, you must consider it all as evidence,-the making of the deed, the payment of the money and the mistake in the deed. They are all circumstances going to show the character of her possession when she made them but are not competent proof of the execution and contents of the deed, or to show that it conveyed the title." The plaintiff duly excepted to this portion of the oral charge and also separately excepted to the court's refusal to give the 15 written charges requested by him. It is not deemed necessary to set these charges out in detail. The plaintiff also separately excepted to the court's giving, at the request of the defendant, the following written charges. (1) "If the jury believe from the evidence in this case that J. H. Ross, when he made the mortgage to Hawkins, had no title to the land sued for, at the time he made the mortgage to Hawkins, and that the debt for which the mortgage was made to secure was the debt of Ross, and not Mrs. Ross, and that the land sued for was the separate statutory estate of Mrs. Ross, then the plaintiff cannot recover, and the jury will find for defendant." (2) "If the jury believe that the lands sued for have been occupied by defendant openly and notoriously, claiming to own the same, continuously ever since her father died, during the war, and just before the war closed, except one year, when she rented it out, and that her tenant occupied for her that year, then such occupancy would create in her a separate statutory estate, and create such title as she can defend this action; and, unless she made the mortgage to secure the debt of hers, then she is entitled to recover in this action, and the jury will so find." (3) "If the jury believe from the evidence that one-half of the debt incurred in building the house was Hanes', and he owned at that time one-half of the lot, and that Mrs. Ross paid her half of the house debt, and that J. H. Ross, her husband, borrowed the money from Hawkins for which the mortgage was made to secure, and that Mrs. Ross did not borrow the money, but her husband borrowed it, then the debt was her husband's debt, and under the law the wife cannot make a valid mortgage to secure the debt of her husband."

Hewitt, Walker & Porter, for appellant.

W. D. Bulger, for appellee.

HARALSON J.

The suit is a statutory action, in the nature of ejectment, by the appellant, Hawkins, to recover from Elmira Ross, the appellee, a certain lot of land described in the complaint. The pleas upon which issue was joined and the cause tried were, "Not guilty," and a special plea of coverture, in which the defendant alleged "that the property sued for was her statutory separate estate at the time of the execution of the conveyance upon which the plaintiff relies for a recovery; that she was, at the time of the execution of said conveyance, a married woman,-the wife of J. H. Ross,-and was living with him, as his wife, in Jefferson county, Ala.; and that the only consideration for the execution of said conveyance was to secure a debt contracted by her husband." The evidence tends to show that one E. S. Hanes claimed an undivided half interest in the lot sued for, and to secure a debt of $500, which he owed to J. H. Ross, he and his wife mortgaged his half interest in said lot to said Ross. This title the defendant recognized, for she testified "that Hanes, who owned a half interest in the lot, was to pay, according to the agreement, half of the cost of the house, [built on the lot,] and she the other half, which she did pay." It appears that Ross, who succeeded to Hanes' half interest in the lot, had an equal interest with his wife, the defendant, in having the house built. As to defendant's title, the proof tends to show that she inherited the property from her father, who owned and died in possession of it about the year 1865, and that defendant has since that time been in possession, claiming it as her own, and that, while she was living on and claiming it as her property, she intermarried with J. H. Ross, who came and resided with her. His residence on the land, under such circumstances, was consistent with her continued possession, which will be referred to her title, and not to his. Motley v. Jones, (Ala.) 13 So. 782.

To show that plaintiff had acquired the defendant's title, he introduced a mortgage on an undivided half interest in the property in suit, executed on the 14th March, 1890, by J. H. Ross and his wife, the defendant, to secure a note for $600, which was also signed by the same parties. The name of J. H. Ross was signed first to the mortgage and note. This mortgage was on an undivided half interest in said lot, and conveyed, also, the "note and mortgage for $500, made on the 13th of December, 1889, by E. S. Hanes and Sarah Hanes to J. H. Ross." It was also shown that these mortgages were, respectively, foreclosed, after their law day, in accordance with their terms, and that plaintiff became the purchaser of the property for the amount of his debt. As further tending to show that the debt secured by said mortgage was the debt of defendant, and not that of her husband, the plaintiff introduced one Rowan, a mechanic, who aided in building the house,-which was subject to a mechanic's lien, as was claimed,-and he testified that when the house was completed the contractors declined to turn it over to defendant and her husband...