Johnson v. Kyser

• Decision Date: 10 April 1900
• Citation: 27 So. 784,127 Ala. 309
• Parties: JOHNSON ET AL. v. KYSER.
• Court: Alabama Supreme Court

27 So. 784

127 Ala. 309

JOHNSON ET AL. v. KYSER.

Supreme Court of Alabama

April 10, 1900

Appeal from circuit court, Conecuh county; J. W. Foster, Judge.

Action of ejectment by Harriet S. Kyser, executrix of William J Kyser, deceased, against William M. Johnson and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

The defendants were the heirs of Bryant Johnson, deceased. The trial was had upon the plea of the general issue. The plaintiff introduced in evidence the following letters testamentary, which were dated November 20, 1893, and signed "Robert A. Lee, Judge of Probate": "The State of Alabama, Conecuh County. Probate Court. The will of William J. Kyser, of Santa Rosa county, Florida, having been duly admitted to record in said county, letters testamentary are hereby granted to Harriet S. Kyser, the executrix named in said will, who has complied with the requisitions of the law, and is authorized to take upon herself the execution of such will. Dated this 20th day of November, 1893." The defendant objected to the introduction in evidence of said letters testamentary upon the following grounds: (1) Said letters show on their face that W. J. Kyser, the testator was a citizen of Florida where he died, and that the executrix named therein was also a citizen of that state; (2) because no sufficient proof has been made of the antecedent proceedings necessary to authorize the issuance of such letters by the probate judge of Conecuh county, Ala. The court overruled these objections, and the defendant duly excepted. The plaintiff then offered in evidence letters patent from the United States government to Dixon W. Darnell covering 40 acres of the lands sued for, and also patents from the United States government to Dixon W. Darnell and Jesse W. Allen to the remainder of the lands sued for. Each of these letters patent was issued on July 28, 1838. The plaintiff then introduced in evidence a deed from B. Gross and Dixon W. Darnell conveying to James M. Hawthorn certain lands, among which were included the lands to which the patent was issued to Darnell and Jesse W. Allen. This deed was dated December 14, 1843. The defendants objected to the introduction of this deed in evidence upon the ground that said deed was not signed by Jesse W. Allen, who was one of the patentees of the lands therein described, as shown by the patents offered in evidence. The court overruled his objection, and the defendants duly excepted. The plaintiffs then introduced a deed from Dixon W. Darnell and wife to James M. Hawthorn, dated January 10, 1844, and also a deed from B. Gross and wife to James M. Hawthorn, dated January 1 1844. Each of these deeds conveyed an undivided one-half interest in the same lands which were included in the deed from Gross and Darnell to Hawthorn. The defendants separately excepted to the introduction of each of these deeds in evidence upon the ground that neither of them was signed by Jesse W. Allen, who was one of the patentees to the lands described, as shown by the patents offered in evidence. The defendant objected to the introduction of each of these deeds. The court overruled each of these objections, and allowed the deeds to be introduced in evidence, and to each of these rulings the defendants separately excepted. The plaintiffs then introduced in evidence a deed bearing date March 23, 1854, from James M. Hawthorn and wife to William J Kyser, the testator of plaintiff, conveying the lands sued for. There was evidence introduced on the part of the plaintiff tending to show that he went into possession under a deed from Hawthorn, and remained in possession up to the time of his death, which occurred in 1893. The defendants introduced in evidence a deed from A. J. Phelps and his wife to Bryant Johnson, the ancestor of the defendants, which deed was dated November 3, 1869, conveying and describing the lands involved in this controversy. The defendants introduced evidence tending to show that Bryant Johnson went into possession of the lands described in said deed, and remained in possession thereof up to the time of his death, which was prior to June, 1891. The defendants then introduced partition proceedings between the heirs of Bryant Johnson, deceased which were admitted by the parties to the pending suit to be correct. The deed from the commissioner appointed to sell said lands for distribution, conveying them to the defendants in suit, was also introduced in evidence. This deed was dated June 10, 1891. The defendants then introduced evidence tending to...