Matkin v. Marx

• Decision Date: 07 November 1892
• Parties: MATKIN v. MARX.
• Court: Alabama Supreme Court

11 So. 633

96 Ala. 501

MATKIN v. MARX.

Supreme Court of Alabama

November 7, 1892

Appeal from circuit court, Marengo county; WILLIAM E. CLARKE, Judge.

Statutory ejectment by Jacob Marx against T. D. Matkin. Plaintiff had judgment, and defendant appeals. Reversed.

G B. Johnston and C. B. Anderson, for appellant.

Geo. W. Taylor, for appellee.

THORINGTON J.

Appellee brought suit against appellant to recover possession of certain real property described in the complaint, the suit being a real action, under the Code, in the nature of ejectment. The plaintiff's title was derived through Newhouse Bros., to whom E. T. Walston and wife mortgaged the property on the 1st day of February, 1887, the mortgagors being then in possession. The mortgage was executed and acknowledged in the form requisite to convey the homestead. After the law day of the mortgage, the mortgagees sold the property pursuant to the power of sale, and appellee became the purchaser, and received a deed in due form from the mortgagees. No question is made as to the regularity of the sale. E. T. Walston, the mortgagor, died in February, 1889. In October, 1889, the property in controversy was set apart by proceedings had in the probate court of Marengo county for that purpose, to Mrs. Magnolia Walston, the widow of the mortgagor, as her homestead, and the mortgage sale was made in December, 1889. While Mrs. Walston was occupying the property as her homestead, as aforesaid, appellant went into possession as her tenant, and was so holding when this suit was instituted. The defendant's pleas were the general issue; that the mortgage debt was paid before the commencement of the suit; and that the legal title to the property was in third persons, and not in the plaintiff, to wit, that Walston, at the time of mortgaging lot 14 to Newhouse Bros., had no deed or legal title thereto, and has never acquired any since; and that, prior to the mortgage to Newhouse Bros., Walston had conveyed lot 16 by a deed of trust to G. B. Johnston, as trustee for the Commercial Bank of Selma, which deed of trust or mortgage was still of force the debt secured thereby never having been paid; that the legal title to lot 14 was in Samuel G. Woolf and his sisters, and that the legal title to lot 16 was in said Johnston, as trustee. The pleas do not in any wise attempt to connect the defendant with either of these outstanding titles. The defendant also set up by plea that the property had been set apart to Mrs. Walston, the widow of the mortgagor, as her homestead, and that, although the mortgage conveyed the homestead, it was merely to secure the debt described in the mortgage, and that such debt had been paid; and that he (the defendant) held the property as Mrs. Walston's tenant. Plaintiff demurred to the special pleas, and his demurrers were sustained by the court; but afterwards the demurrer to the plea of payment was reconsidered and overruled, and a motion of the plaintiff to strike said plea from the file was likewise overruled.

The defendant made various offers of proof to show the alleged outstanding title to both lots, and also the proceedings by which the property had been set apart to Mrs. Walston as her homestead; all of which proof, on the plaintiff's objection, was excluded, and the defendant excepted. After the cause had been submitted to the jury, and plaintiff had rested his cause, the defendant suggested upon the record, as the bill of exception states, that he was the tenant of Mrs Magnolia Walston, who holds under her deceased husband, the mortgagor, and moved the court to "intimate" to the jury to ascertain the amount due under the mortgage "which forms a part of the title under which the plaintiff claims." On objection of the plaintiff, the court refused to allow the motion to be filed, and the defendant excepted. The judgment entry recites that "after issue joined, and after the evidence of the plaintiff was closed, the defendant filed a motion in writing to substitute Mrs. Magnolia Walston, as landlord, as defendant in his stead." The plaintiff demurred to the motion, and the demurrer was sustained. Neither the motion itself nor the grounds of demurrer are set out in the record. The settled rule in this court is that a defendant in ejectment, or the statutory action in the nature of ejectment, may set up...