McCarty v. Skelton
| Decision Date | 04 March 1937 |
| Docket Number | 6 Div. 11 |
| Citation | 172 So. 901,233 Ala. 531 |
| Parties | McCARTY v. SKELTON. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
Suit in ejectment by Joseph H. Skelton against Polly McCarty and others. From a judgment for plaintiff, named defendant appeals, and the cause was revived on the death of appellee in the name of Nelson Skelton, as administrator of the estate of Joseph A. Skelton. Transferred from Court of Appeal under section 7309, Code 1923.
Affirmed.
Theo. J. Lamar and T.A. Murphree, both of Birmingham, for appellant.
Harsh Harsh & Hare, of Birmingham, for appellee.
This appeal is by the defendant from the judgment of the circuit court entered on the verdict of a jury responding to the second count of the complaint--statutory ejectment--for the recovery of the possession of the E. 1/2 of the S.E. 1/4 of section 33, township 16, range 6 west, in Jefferson county Ala., not including certain mineral rights.
This tract was patented to Wesley Prescoat, of Jefferson county Ala., on the 20th day of December, 1862, under previous purchase made under the Act of Congress of April 24, 1820 (3 Stat. 566); Prescoat conveyed the lands to Josiah Thompson, July 8, 1858, with general covenants of warranty.
On the 5th day of August, 1862, Josiah Thompson, in consideration of love and affection, and $5 cash in hand paid, executed a deed purporting to convey to his wife, Mary E. Thompson, a life estate in said lands, with remainder over to his daughter Ophelia C. "and any other children of the said Mary E. by me begotten in equal shares" and "to their heirs and assigns forever," with general covenants of warranty.
Ophelia was the only child born to the said Josiah and Mary E. Thompson. Josiah Thompson died during the war between the States, and Mary E. Thompson died during the year 1913. The plaintiff married Ophelia, in 1881, and she died some four or five years previous to the trial.
Ophelia C. Skelton, the plaintiff's wife, sued Tillman McMillan, in ejectment, in 1915, and on the 16th of November, 1921, recovered a judgment for the possession of said lands, $200 as damages, and the costs. From that judgment McMillan appealed, and on January 4, 1923, the judgment was here affirmed.
On the 11th of December, 1923, a writ of possession was issued on the judgment as affirmed, and on February 12, 1924, as evidenced by the sheriff's return on said writ, the sheriff "executed the same by dispossessing the defendant, Tillman McMillan and putting the plaintiff, Ophelia C. Skelton, thru her agent J.A. Skelton into peaceful possession of the within described premises."
The defendant claims under Tillman McMillan and seeks to establish continuous, open, adverse possession under color of title for more than ten years.
The appellant's first contention is that the deed from Josiah Thompson to his wife and daughter was void under the law of that day--July 8, 1858--and that the court erred in admitting the deed in evidence over the defendant's objection; that it had "the effect to engender in the mind of the jury the fact that during the lifetime of Mary E. Thompson adverse possession could not run against Ophelia Skelton."
Powe v. McLeod & Co., 76 Ala. 418, is cited to support the contention that said deed is void. The pertinent holding in that case was that "A conveyance of lands by the husband to his wife directly, without the intervention of a third person as trustee, passes to her only an equitable estate, the legal title remaining in the husband as her trustee; and on his death, the legal title descends to his heirs." Headnote 2.
The deed here under consideration was made to the wife and daughter, and its clear effect was to vest in the wife an equitable estate for life, with the fee and remainder in the daughter. Moreover, the effect of the married woman's law of 1887 (Code 1923, § 8273) on deed previously made by the husband direct to the wife without the intervention of a trustee, the rights of a third person not having intervened, was to unite in the wife the legal and equitable title, giving her a fee-simple title. Manning v. Pippen, 86 Ala. 357, 5 So. 572, 11 Am.St.Rep. 46; Maxwell v. Grace, 85 Ala. 577, 5 So. 319.
The appellant's next contention is that the...
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Alabama Mills, Inc. v. Smith, 6 Div. 450.
... ... His ... express authority is only shown by his own testimony, as to ... which he was competent to testify as a witness. McCarty ... v. Skelton, 233 Ala. 531, 172 So. 901 ... Miller ... testified that he was foreman of the erecting and overhauling ... of machinery ... ...
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Smith v. Wachovia Bank, N.A., No. 1071239 (Ala. 9/30/2009)
...The agent, if otherwise competent, may testify as a witness as to the nature and extent of her authority. See, McCarty v. Skelton, 233 Ala. 531, 172 So. 901 {1937).' "Sevigny v. New South Fed. Savs. & Loan Ass'n, 586 So. 2d [884] at 886-87 [(Ala. Harrelson v. Harrelson, 7 So. 3d 1004, 1009-......
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Smith v. Bank
...The agent, if otherwise competent, may testify as a witness as to the nature and extent of her authority. See, McCarty v. Skelton, 233 Ala. 531, 172 So. 901 (1937).’“ Sevigny v. New South Fed. Savs. & Loan Ass'n, 586 So.2d [884] at 886-87 [ (Ala.1991) Harrelson v. Harrelson, 7 So.3d 1004, 1......
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Harrelson v. Harrelson
...The agent, if otherwise competent, may testify as a witness as to the nature and extent of her authority. See, McCarty v. Skelton, 233 Ala. 531, 172 So. 901 (1937)." Sevigny v. New South Fed. Savs. & Loan Ass'n, 586 So.2d at The difference between this case and Sevigny, supra, is that, with......