Hopkins v. Duggar

• Decision Date: 30 June 1920
• Docket Number: 2 Div. 697
• Citation: 204 Ala. 626,87 So. 103
• Parties: HOPKINS v. DUGGAR.
• Court: Alabama Supreme Court

87 So. 103

204 Ala. 626

HOPKINS v. DUGGAR.

2 Div. 697

Supreme Court of Alabama

June 30, 1920

Rehearing Denied Nov. 6, 1920

Appeal from Circuit Court, Marengo County; A.B. Foster, Judge.

Ejectment by R.H. Duggar against H.T. Hopkins. Judgment for plaintiff and defendant appeals. Affirmed.

Henry McDaniel, of Demopolis, and J.J. Mayfield, of Montgomery, for appellant.

William Cuninghame, of Linden, for appellee.

SAYRE J.

Appellee sued in statutory ejectment stating his case in three counts. There was a disclaimer as to the lands described in the second count of the complaint upon which plaintiff thereupon had judgment, without costs or damages. As to the regularity of that judgment no question is made. Count 1 described the land sued for as:

"A strip off the west side of the east 1/2 of the west 1/2, being 40 feet wide at the north end, and 30 feet wide on the south end of section 24, in township 18, range 3 east, in Marengo county, Ala."

In count 3 the land was described as:

"A strip or parcel on the west side of the E. 1/2 of W 1/2 of Sec. 24, T. 18, R. 3 east, bounded as follows: On the N. by the north line of said section; on the east by a turn row and ditch; on the south by the south line of said section, and on the west by the line dividing the E. 1/2 of W. 1/2 and W. 1/2 of W. 1/2 of section 24, T. 18, R. 3 E., in Marengo county, Ala."

To these counts the plea was "not guilty." The verdict, which, as to form, followed the court's oral charge, was in these words:

"We, the jury, find for the plaintiff assessing the damages at one hundred and twenty-five dollars."

Upon this verdict the court rendered judgment for plaintiff appellee, for land described as follows:

"A strip or parcel on

the west side of the east half of west half of section 24 township 18, range 3 east, bounded as follows: On the north by the north line of the said section, on the east by a turn row and ditch; on the south by the south line of said section, on the west by the dividing line dividing the east half of west half and the west half of west half of section 24, township 18, range 3 east, in Marengo county, Ala.,"

--and for the damages assessed by the jury, it thus appearing that the court referred the verdict to the third count of the complaint.

It will be noted that the western boundary of the east 1/2 of the west 1/2 of section 24 is the common western boundary of the two tracts described in counts 1 and 3; and so the north and the south lines of the half section are common to the two tracts. The difference is that the tract described in count 1 is bounded on the east by a line at its north end 40 feet, and at its south end 30 feet, from the western boundary line of the half section, while the tract described in count 3 is bounded on the east by a ditch and a turn row. The record does not inform us whether the two descriptions are coterminous on the east.

Appellant's contention as to error is founded upon section 3853 of the Code. The effect of that section, as construed in the decisions of this court, is as follows: Where the verdict in ejectment is special, as being for a part only of the premises sued for, the boundaries of the land recovered must be designated with reasonable certainty in the verdict, so as to enable the court to award judgment on it; but a general verdict for the plaintiff, for the land described in the complaint, has always been held to be good. Alexander v. Wheeler, 69 Ala. 332, 340. The verdict in this case must be construed as a finding on the issue joined, and such a finding is as definite and determinate as if the verdict had in terms affirmed that the jury found for the plaintiff for the lands described in the complaint. Chapman v. Holding, 60 Ala. 522. The only trouble supposed to inhere in the verdict and judgment is that the verdict failed to specify the count on which plaintiff was to recover while the judgment is for the land described in the third count. But our opinion is that the statute, supra, cannot be assigned the effect attributed to it by the appellant in this case.

The evidence showed without dispute that plaintiff was entitled to recover the land described in the third count, and indeed, the whole evidence was directed to the question of the possession and ownership of land described as in the third count. It went to show, without contradiction, or the possibility of adverse inference, that plaintiff and those under whom he deraigned title had been in possession of the strip there described, openly, exclusively, and continuously for a period of nearly 40 years claiming to own the same and although plaintiff and his predecessors in title on the one side, and his coterminous owners on the other, viz., defendant and his predecessors, had by their tenant cultivated the land up to the turn row and ditch during all that time,...