Leatherwood v. Sullivan

• Decision Date: 16 February 1887
• Citation: Leatherwood v. Sullivan, 81 Ala. 458, 1 So. 718 (Ala. 1887)
• Court: Alabama Supreme Court
• Parties: LEATHERWOOD and another v. SULLIVAN and another, Ex'rs.

1 So. 718

81 Ala. 458

LEATHERWOOD and another v. SULLIVAN and another, Ex'rs.

Supreme Court of Alabama

February 16, 1887

Appeal from circuit court, Escambia county.

This was an action of detinue, brought by the appellees, Martin H Sullivan and Emily S. Sullivan, as executors of the will of Daniel F. Sullivan, deceased, against the appellants, Joseph W. Leatherwood and Daniel Leatherwood, for the recovery of 35 pieces of timber, more or less, alleged to have been cut from section 13, township 2, and range 6, in the county of Escambia, Alabama.The appellants plead, in the language of the transcript, non detinet; adverse possession of the lands on which the timber sued for was cut; ne unques administrator; that the letters of administration are void, no bond having been given as required by the statute, and the letters having been granted contrary to law that this suit is brought for injury to the reversion, and can only be brought by the heirs, and not by the executors.The evidence showed that said section 13, township 2, and range 6, was the land of said decedent, Daniel F. Sullivan that it was wild and unoccupied timber land; that the timber sued for was cut off said lands, and carried away by the appellants, who had a timber camp thereon.The quality and value of said timber were also proven.The appellees, being non-resident executors, introduced in evidence the following letters testamentary, issued to them by the probate court of Escambia county, Alabama:

"THE STATE OF ALABAMA-PROBATE COURT, ESCAMBIA COUNTY.

"November Term, 8th, 1884.

"The will of Daniel F. Sullivan, of Escambia county, Florida having been duly probated in said county of Escambia and state of Florida, and M. H. Sullivan and Emily S. Sullivan named as executors therein, having filed in the probate court of Escambia county, state of Ababama, a copy of the will under which said executors were appointed, together with a certificate of the Hon. N. C. SHACKELFORD, judge of the court in which said will was probated, that said will was regularly proved and established, and that letters testamentary were issued thereon to the said M. H. Sullivan and Emily S. Sullivan in accordance with the laws of the state of Florida, and the will of the said D. F. Sullivan, deceased, having been duly probated, and it appearing in said will it is expressly provided that no bond be required of said executors, and that said court issuing said original letters has not required any bond of said executors, additional letters testamentary are hereby granted to said M. H. Sullivan and Emily S. Sullivan, the said executors named in said will, who have complied with the requisition of law, and are authorized to take upon themselves the execution of said will, so far as relates to the assets of the estate of said D. F. Sullivan, deceased, which may be within the state of Alabama.

" Dated this the eighth day of November, A.D. 1884.

"N. R. LEIGH, Probate Judge."

The appellants objected to the admission of these letters, on the ground "that they showed upon their face that the probate judge had no jurisdiction to issue them, and that they were illegal and void."The court overruled the objection, and the appellants excepted.The appellees then introduced all the records of the probate court of Escambia county, Alabama, relating to this matter, which records contained, among other things, a certified copy of the will of said D. F. Sullivan and the certificate of the judge of probate of Escambia county, Florida, in which said will was probated, that said will was regularly proved and established according to the laws of Florida, and that letters testamentary were issued thereon to said M. H. and Emily S. Sullivan.The will was attested by only one witness, and said M. H. and Emily S. Sullivan were appointed executor and executrix thereof, and exempted from giving bond.Said M. H. Sullivan, a brother of the testator, was residuary legatee and devisee under the will, and as such the title to said land on which the timber was cut vested in him.

The appellant asked the following charges in writing:

"(1) If the jury believe the evidence, they must find for the defendants.

"(2) If the title to the land from which the timber in this suit was severed was in M. H. Sullivan, then the plaintiffs, as executors of Daniel F. Sullivan, deceased, cannot maintain an action for timber cut therefrom.

"(3) Upon the death of Daniel F. Sullivan, by virtue of his will introduced in this case, the legal title to the land from which the timber sued for in this case was severed, passed to M. H. Sullivan, and the executors of the will of Daniel F. Sullivan cannot maintain an action for the recovery of the timber severed therefrom.

"(4) Upon the death of Daniel F. Sullivan, the title to the land from which the timber sued for in this case was severed passed, eo instante, into the heirs of Daniel F. Sullivan; and the plaintiffs, as executors of the will of said Daniel F. Sullivan, cannot maintain an action therefor.

"(5) Unless the plaintiffs, as the executors of the will of Daniel F. Sullivan, took possession of the land from which the timber sued for in this case was severed, for the purpose of carrying into effect said will, and if theynever took into their actual possession the land for the said purpose, the title being either in M. H. Sullivan by virtue of said will, or in the heirs of said Daniel F. Sullivan by virtue of the law of descent, the plaintiffs cannot recover for the timber severed therefrom."

Then followed two charges numbered 6 and 7, which asserted, in substance, that the plaintiffs were not entitled to recover, unless they had given bond with at least two good and sufficient sureties, payable to and approved by the judge of probate of Escambia county, Alabama, in such amount as said judge may have prescribed with reference to the amount to be recovered, and conditioned to faithfully administer such recovery according to law.The court refused each of those seven charges, and the appellants separately and severally excepted to the refusal of each charge.

Farnham & Rabb, for appellants.

James M. Davidson and Stallworth &...