Howard v. Martin

• Decision Date: 10 April 1913
• Citation: 181 Ala. 613,62 So. 99
• Parties: HOWARD v. MARTIN.
• Court: Alabama Supreme Court

62 So. 99

181 Ala. 613

HOWARD v. MARTIN.

Supreme Court of Alabama

April 10, 1913

Appeal from City Court of Birmingham; C.C. Nesmith, Judge.

Ejectment by William M. Martin against J.M. Howard. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Harsh Beddow & Fitts, of Birmingham, for appellant.

William M. Walker and A. Latady, both of Birmingham, for appellee.

MAYFIELD J.

This action is the statutory one in the nature of ejectment. The defendant interposed a plea to which a demurrer was sustained. The plea was as follows: "No. 1. Comes defendant and disclaims possession in part of the premises sued for, viz., he disclaims possession of that part of the land sued for easterly of plainiff's fence, and as to all the remainder of the premises sued for defendant says he is not guilty." The plea is a hybrid; it attempts to disclaim as to a part of the premises, which it fails to describe with sufficient certainty, and pleads not guilty as to the remainder, and this, of course, results in making the latter portion uncertain. If the defendant had a fence extending north and south, across the premises in dispute and had but one fence of that kind, he might disclaim as to that part of the land east of the fence and plead not guilty as to the remainder, as he attempted to do by this plea; but the plea is lacking in these or similar allegations necessary to make certain the part as to which it disclaimed, and for this reason it was insufficient.

A disclaimer, however, strictly and accurately speaking, is not pleading; the plaintiff cannot be required to take issue upon it. As to the lands disclaimed, he may, if he desire, take judgment therefor, without costs; but he can take issue thereon if he desire. For this reason it is necessary that the plaintiff be certainly informed as to the part which the defendant disclaims possession of, as well as so informed touching the part as to which he admits possession but denies title. These difficulties and uncertainties, in our system of pleading in actions of ejectment, were pointed out by Stone C.J., in the case of McQueen v. Lampley, 74 Ala 408, 410, 411, where it was said:

"Disclaimer, or denial of possession, would have put in issue the question, and only the question, of possession. The former is an admission of defendants' possession, with denial of plaintiff's title; the latter an admission of plaintiff's title, with denial of defendant's possession. They are incompatible defenses and cannot be pleaded together Bernstein v. Humes, 60 Ala. 582 ."

"We submit if there should not be some change of the statute on this subject. Should not a defendant, in a case like the present, have equal right with the plaintiff, who brings him into court, to so plead as to put the question of boundary in issue and have the jury pass upon it? The plaintiff, by controverting the disclaimer and averring the defendant was in possession when the suit was brought, may have a verdict and judgment on the question of boundary. He may, however, decline to do so and thus leave the controversy in such form as to invite other suits."

To meet this deficiency, the statute on the subject (section 3843 of the Code) has been amended and now reads as follows: "The defendant may, in an action of ejectment, or in an action in the nature of ejectment, disclaim possession of the premises sued for, in whole or in part, and upon such disclaimer the plaintiff may take issue; and, if the issue be found for him, he is entitled to judgment as if the defendant had, in an action of ejectment, entered into the consent rule, confessing possession as well as lease, entry and ouster, or, in an action in the nature of an action of ejectment, had pleaded 'not guilty' admitting possession. The defendant in his disclaimer may suggest to the court that the suit arises over a disputed boundary line, and thereupon the court shall make up an issue and submit to the jury the question of the true location of the line, and shall render judgment accordingly and order the sheriff to establish and mark the true line, found by the jury, and in such case, apportion the costs justly and equitably."

Following the above Code provision the defendant (appellant here) suggested that the suit arose over a disputed boundary line but the court, so far as the record proper shows, failed to make up an issue on this suggestion as the statute directs, but the case was tried on defendant's third plea of disclaimer, which disclaimed as to all the land sued for which was west of a survey made by one Wheeler, and pleaded not guilty as to the remainder. The bill of exceptions, however, indicates that the court did make up an issue on this suggestion, and that the trial was had on this issue as to the true boundary line, and not merely on the disclaimer, which was only as to...