Johnson v. Sandlin

• Decision Date: 07 April 1921
• Docket Number: 6 Div. 143
• Citation: 89 So. 81,206 Ala. 53
• Parties: JOHNSON v. SANDLIN.
• Court: Alabama Supreme Court

89 So. 81

206 Ala. 53

JOHNSON v. SANDLIN.

6 Div. 143

Supreme Court of Alabama

April 7, 1921

Rehearing Denied May 12, 1921

Appeal from Circuit Court, Blount County; Woodson J. Martin, Judge.

Ejectment by Josie Johnson, as administratrix of the estate of Tillman S. Boyd, deceased, against John F. Sandlin. Judgment for the defendant, and plaintiff appeals. Affirmed.

James Kay, of Oneonta, for appellant.

Russell & Johnson, of Oneonta, for appellee.

MILLER J.

Josie Johnson, as administratrix de bonis non of the estate of Tillman S. Boyd, deceased, brings statutory action of ejectment against John F. Sandlin for recovery of possession of the following land: All of west 1/2 of southeast 1/4 of section 14, township 13, range 4 west, which lies on east side of the Mulberry fork of the Black Warrior river containing 25 acres, more or less, in Blount county, Ala.

The complaint is in the form prescribed by the statute. It is tried by the court, without a jury, on the oral testimony of witnesses. Judgment is rendered in favor of the defendant. This judgment and the admission and rejection of testimony on the trial by the court are assigned as errors.

On October 3, 1883, Dr. T. Boyd and wife conveyed by deed this and other land to Tillman S. Boyd and Samuel Boyd. It was duly signed, acknowledged, and recorded. The deceased and Samuel Boyd were brothers, and lived together at the time near this land, and until the death of Samuel Boyd in 1912. The evidence for plaintiff tended to show that the two brothers were together in possession of this land, collecting annually the rent therefrom until 1912--the death of Samuel Boyd--and that plaintiff's intestate thereafter, until his death in 1916, was in possession, and that defendant was in possession at the time this suit was filed.

Both died intestate. Samuel left a widow, but no children or their descendants; and Tillman was never married. They left three sisters, and descendants of a sister and a brother, and probably others. The evidence is neither clear as to how many, nor the names of all the brothers or sisters, or their descendants. There was evidence for the plaintiff tending to show that Samuel Boyd, at the time of his death, owned an undivided one-half interest in the land, and plaintiff's inestate owned the other half interest. There was also evidence for the defendant tending to show that plaintiff's intestate sold his interest in the land to his brother, Samuel Boyd, and that Samuel Boyd at his death owned the entire title to the 25 acres. There was evidence that "These people that signed this quitclaim deed [to the defendant] are brothers and sisters-in-law to Tillman S Boyd," and the witness testified "that he got the quitclaim that was signed by his mother and the other heirs."

On November 21, 1919, Tlitha Dean, Bettie Ann Ward, and Margaret Parker, sisters of plaintiff's intestate, and Perry Parker, husband of Margaret Parker, quit-claimed and conveyed to John F. Sandlin, the defendant, all their right, title, and interest in and to the said 25 acres of land sued for and described in this suit. The defendant offered in evidence said deed. The court did not err in overruling plaintiff's objections to it. This deed, it is true, was executed November 21, 1919. This suit was commenced September 10, 1919. There is no plea of puis darrein continuance in the record. It is not necessary in actions of ejectment. Title acquired by defendant after commencement of suit can be submitted under plea of not guilty--the general issue. The plaintiff, to recover in ejectment, must have title when he files his suit, and also at the time of the trial. The defendant can defend under any title acquired by him before the trial under the plea of not guilty. Etowah Min. Co. v. Doe, Carlisle, 127 Ala. 668, 29 So. 7; Rucker v. Jackson, 180 Ala. 109, 60 So. 139. Ann.Cas.1915C, 1058; Bynum v. Gold, 106 Ala. 427, 17 So. 667; Bruce v. Bradshaw, 69 Ala. 360; Hairston v. Dobbs, 80 Ala. 589, 2 So. 147; Scranton v. Ballard, 64 Ala. 402.

These grantors in the deed were heirs of Tillman S. Boyd and of Samuel Boyd. It conveyed to defendant some interest of the half interest of Tillman S. Boyd, and some interest of the half interest of Samuel Boyd. If Samuel Boyd had purchased from Tillman Boyd this land then the deed conveyed some interest of the Samuel Boyd interest.

This land is in possession of a vendee (the defendant) of some of the heirs of plaintiff's intestate and of the heirs of Samuel Boyd, deceased. The plaintiff's intestate, from the evidence, did not own the entire interest in the land at his death. One-half at least of it belonged to the heirs of his brother Samuel; and some of the said heirs of Samuel Boyd and some of the said heirs of Tillman Boyd conveyed by that deed some interest to the defendant. The defendant claims to own some interest in the land that never belonged at any time to Tillman Boyd, but which belonged to Samuel Boyd. The proof as to number and names of heirs is so indefinite, we cannot state accurately what interest the defendant has, or plaintiff's intestate had in this land at his death. Plaintiff's intestate inherited a part of the half interest in this land at his brother Samuel's death....