Jernigan v. Flowers

• Decision Date: 07 January 1892
• Citation: 94 Ala. 508,10 So. 437
• Parties: JERNIGAN ET AL. v. FLOWERS.
• Court: Alabama Supreme Court

10 So. 437

94 Ala. 508

JERNIGAN ET AL. v. FLOWERS.

Supreme Court of Alabama

January 7, 1892

Appeal from circuit court, Coffee county; JESSE M. CARMICHAEL Judge.

Ejectment by Emma Flowers against D. W. Jernigan and others. There was judgment for plaintiff, and defendants appeal. Reversed.

W D. Roberts, for appellants.

P M. Hickman, for appellee.

COLEMAN J.

Appellee brought suit in ejectment to recover certain lands. The rule is that to recover in this action plaintiff must rely upon the strength of her title. In August, 1878, George P. Roberts sold to R. O. Flowers the land in controversy, and executed to him a bond to make a quitclaim title upon the payment of the stipulated purchase money. In August, 1881, George P Roberts, the same vendor, sold and conveyed by quitclaim deed the same land to the defendants in this ejectment suit. The evidence tends to show that R. O. Flowers, the first purchaser, took possession of the land, and complied with the terms of his purchase by the payment of the purchase money at the time or before it was due, but that George P. Roberts died without making him or his vendee a quitclaim deed, as stipulated in the bond for title. On the 8th of December, 1881, R. O. Flowers by deed conveyed the land to Emma J. Faussett, who is the same person as Emma Flowers, plaintiff. The evidence tends to show that she went into possession under her purchase, and remained in possession until ousted by the sheriff, in April, 1888.

It will be seen, from this statement of the facts, that when R. O. Flowers sold and conveyed to plaintiff he did not have the legal title, but only an equity; and it will be further seen that plaintiff's possession, coupled with that of the vendor, lacked a few months of completing 10 years, the time necessary under the statute to perfect a legal title by adverse possession. The defendant offered to prove that R. O. Flowers and plaintiff were husband and wife at the time he executed the deed to her, and were living together as husband and wife in the year 1885, and at the time of the trial of the present suit. The court refused to permit this proof to be made. This ruling of the court was clearly erroneous. It is elementary that the interest of a witness in the result of a suit may be shown, and his relationship to the party in whose favor he is called to testify. It was erroneous for the further reason that, if they were man and wife, his deed of conveyance at the time of its execution did not operate to vest in her more than an equitable title. Whether the act of February 28, 1887, (Code, § 2341,) had the effect to vest in her the legal title, also, as against the defendants, would depend upon the further fact that no rights had been acquired by the defendants before the adoption of that act. Maxwell v. Grace, 85 Ala. 579, 5 South. Rep. 319; Manning v. Pippen, 86 Ala. 357, 5 South. Rep. 572. G. R. Flowers, the father of R. O. Flowers, testified that plaintiff and R. O. Flowers "went on said place in the year 1882 or 1883, and they stayed on it two or three years." In view of this testimony, it was competent for the defendants to introduce the record of the ejectment suit instituted by the defendants in the year 1885 against R. O. Flowers, and the recovery in that suit, and delivery of possession of the land by the sheriff in consequence of the recovery. It was for the jury to determine, from the conflicting testimony, whether R. O. Flowers was in possession of the land, and the character of his possession, if the proof showed he was in possession, at the time of the institution of the ejectment suit against him.

The facts are not presented in the bill of exceptions as fully and satisfactorily as desired, but we will lay down the material principles of law which appear to bear upon the case. George P. Roberts, from whom both parties claim purchased the land in controversy at a tax-sale. In August, 1878, the time he executed his bond for title to R. O. Flowers, he had the tax collector's certificate of purchase, but had not received the tax-deed. By quitclaim deed, in August, 1881, he sold and conveyed the same land to the defendant Jernigan; and it was by virtue of the legal title conveyed by this tax-deed Jernigan brought the suit in ejectment in 1885 against R. O. Flowers, and received possession of the land. In August, 1881, when the quitclaim deed was made to Jernigan, the tax-deed had not been executed to any one, and the bond of Roberts to Flowers to make him a quitclaim deed upon the payment of the purchase money had been executed in August, 1878, some three years before the sale to Jernigan. The bond of Roberts to R. O. Flowers, in effect,...