Lowery v. Rowland

• Decision Date: 21 June 1894
• Citation: 16 So. 88,104 Ala. 420
• Parties: LOWERY v. ROWLAND ET AL.
• Court: Alabama Supreme Court

16 So. 88

104 Ala. 420

LOWERY v. ROWLAND ET AL.

Supreme Court of Alabama

June 21, 1894

Appeal from circuit court, St. Clair county; Leroy F. Box, Judge.

Action by P. L. Rowland and others against B. L. Lowery to recover damages to a reversionary estate caused by the cutting of timber. Judgment was rendered for plaintiffs, and defendant appeals. Reversed.

The suit as originally brought was in the name of the 12 heirs at law of James Rowland, deceased. The complaint was afterwards amended by striking from the plaintiffs mentioned therein the names of P. L. Rowland, L. E. Braden and J. B. Rowland. The allegations of the two counts which were added by amendment after demurrers were sustained to the original complaint, are sufficiently stated in the opinion. To these two counts the defendant pleaded-First, the general issue, and, second, the statute of limitations of one year, and the following special pleas: (3) "That this defendant in person neither cut nor removed any trees or timber off of the lands described in plaintiffs' complaint, and that all trees which were cut and timber removed from said lands by agents or at the request of this defendant were cut and removed by the express consent, direction and instructions of Parzetta Rowland and P. L. Rowland, who were at said time in possession thereof." (4) "That at the time of the alleged wrongs mentioned in plaintiffs' complaint, Parzetta Rowland, widow of James Rowland, deceased, was in the actual rightful and legal possession of said lands, and that, as such rightful and legal possessor thereof, she put this defendant in possession of the same with instructions to cut and remove the timber therefrom." (5) "That at the time of the alleged cutting and carrying away of said timber Parzetta Rowland was in the actual, legal and rightful possession of said lands. That she held such possession of said lands at the time of the commencement of this suit, and that she now has and holds such possession of said lands." (6) "That before instructing any timber to be cut or removed from said lands this defendant turned over to and paid Parzetta Rowland, who was at said time the natural guardian of the minors named as plaintiffs in this action, and as such natural guardian was in the legal and rightful possession of said lands, a large amount of money for the right and privilege of cutting and removing saw timber, which said money said Parzetta Rowland, as such guardian of said minors, used and appropriated to the use comfort and benefit of said minor plaintiffs; and which said sum of money defendant offers to recoup against the demands and claims of said minor plaintiffs in this action." To the third, fourth, fifth and sixth pleas the plaintiffs separately demurred, on the ground that neither of said pleas showed that the said Parzetta Rowland had any right or authority to sell said timber, alleged to have been cut by the defendant, or to authorize the same to be cut, and that each plea failed to show that the said P. L. Rowland had any authority from the other plaintiffs to give the defendant consent to cut said trees. These demurrers were sustained, and issue was joined upon the plea of the general issue. The defendant requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe all the evidence in this case, they must find a verdict in favor of the defendant." (2) "The court charges the jury that in this action, under the evidence, they cannot find in favor of the plaintiffs for the value of the timber." (3) "If the jury cannot find from the evidence in this case, to a reasonable certainty a definite number of trees which defendant cut or directed to be cut and carried away from plaintiffs' land, then under the evidence in this case the jury must find for the defendant."

M. M. Smith, for appellant.

Wm. M. Bethea, for appellees.

HARALSON J.

The original complaint consisted of five counts, some in trespass and trover, against defendant, for having entered upon lands belonging to plaintiffs and cutting, carrying away and converting to his own use, the valuable timbers therefrom. A demurrer was interposed to the complaint, and to its different counts, which was sustained. Thereupon, the plaintiffs asked, and were allowed to file an amended complaint, in two counts, marked in the record "1" and "4," to which the defendant made no objection, on any account, by way of demurrer, but to which he filed seven pleas. The two counts constituting the amended complaint, were in case to recover damages done by the defendant to the reversionary interest of the plaintiffs in the lands described. The first set up in substance, that they owned a reversionary interest in said lands, subject to their mother's right of quarantine and dower; that said lands were the place of residence of James Rowland, (who was their father, and who as the proofs show died intestate in 1885) at the time of his death and before; that the estate of said James Rowland was solvent; that no administrator had ever been appointed on his estate and no dower had been assigned to his widow,-their mother,-Mrs. Parzetta Rowland, in said lands, nor had they been set apart to her as her homestead, exempt from administration; that plaintiffs are the only children and are the sole heirs of said James Rowland, deceased, and as such, they own said lands, subject to the quarantine and dower right of their mother, who under such quarantine and dower right, had possession of said lands at the time the injuries complained of were done to their reversion in said lands by the defendant. The second is like the first count, except that it shows the damage done to their reversion in said lands by defendant, was committed between the 1st days of December, 1886, and 1891; that the defendant entered on said lands by virtue of a "release," executed to him by the mother of plaintiffs, to the timber growing on said lands; that they were residing with their mother on said lands, between the dates given when the said injuries were done to said lands by defendant, and that said lands were their property, subject to their mother's right of quarantine and dower. Under the Code, it may be well to state, that heirs take as tenants in common. Section 1923. The first plea was that of the general issue on which issue was joined; the second, the statute of limitations of one year, on which issue was joined, but of which no notice was afterwards taken; the third, fourth, fifth, and sixth were demurred to, and the demurrers sustained; and the seventh, set-off, on which issue was taken, but which, thereafter, disappeared. The case was tried on the plea of the general issue.

1. The third plea, in its first part, is no more than the general issue, and, in its latter part, is in the nature of a confession and avoidance, setting up, that the trees were cut by the consent, direction and instruction of Parzetta Rowland, and P. L. Rowland, without showing any right or authority in either, or both, to give such consent and instructions. Under our statutes, the widow of an intestate is entitled to retain, free...