McCurdy v. Kenon

• Decision Date: 30 May 1912
• Citation: 59 So. 489,178 Ala. 345
• Parties: MCCURDY ET AL. v. KENON ET AL.
• Court: Alabama Supreme Court

59 So. 489

178 Ala. 345

MCCURDY ET AL. v. KENON ET AL.

Supreme Court of Alabama

May 30, 1912

Rehearing Denied June 29, 1912.

Appeal from Circuit Court, Lowndes County; A. E. Gamble, Judge.

Ejectment by Sallie B. Kenon and others against W. D. McCurdy and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Sayre J., dissenting.

W. A Gunter, of Montgomery, and A. D. Pitts, of Selma, for appellants.

Powell & Hamilton, for appellees.

McCLELLAN J.

Statutory ejectment by appellees against appellants.

It was agreed that John Dudley, Sr., was the common source of asserted titles. The plaintiffs are children of Joseph R Dudley. In 1866 John Dudley, Sr., executed a deed to the lands in controversy to Joseph R. Dudley, Bolling Dudley Sarah Reese, and Julia Dudley (later the wife of W. C. Kirkland). They were children of John Dudley, Sr. The intent of the grantor, in this instrument, was to vest in each of these grantees a life estate in the lands described, with remainder to their children. Joseph R. Dudley died in 1909. The recovery given the plaintiffs in the court below was of an undivided one-fourth interest in the lands described in the complaint.

The defendants' asserted claim is back, through mesne conveyances, to a sale of these lands under an execution, issued in the early '70's, in the original equity cause of Mary D. Witter against John Dudley, Sr. Pending the final disposition of this cause, John Dudley, Sr., died in 1871. The revivor was against his personal representative and his heirs, a part only of whom were the grantees in the mentioned deed of 1866.

The history, in the main, of Mary D. Witter's (née Lewis) connection with and relation to these lands, as, also, the course, nature, and result of the litigation may be found set forth in Witter v. Dudley, 36 Ala. 135; Witter v. Dudley, 42 Ala. 616; Dudley v. Witter, 46 Ala. 664; and Dudley v. Witter, 51 Ala. 456. We shall avoid repetition as far as may be consistent with a statement of the circumstances out of which the legal question now to be considered arises.

In 1860 Mary D. Witter filed her bill against John Dudley, Sr., to compel his surrender of the lands which, in equity, belonged to her as an heir at law of Francis Lewis, her father. The legal title to these lands had been vested in Hamlin F. Lewis, as trustee, for his sister, Mrs. Witter. Without authority of any kind, the trustee undertook to sell these lands to John Dudley, Sr. The theory of the bill also comprehended an accounting by Dudley to Mrs. Witter for rents and profits. While, as stated, this cause was pending, John Dudley, Sr., on October 27, 1866, executed a deed of gift to his four children, with remainder to their children. The liability of Dudley, Sr., to Mrs. Witter existed when this deed of gift was executed.

Pending this cause, this proceeding took place: "At the October term, 1868, the following order was entered in the cause: 'The complainant having announced herself ready for trial, the defendant Dudley applied for a continuance, and for leave to examine the complainant and Mrs. Susan Lewis, the widow of D. H. Lewis, and Mrs. Mary M. Scott, the wife of James E. Scott, as witnesses for said Dudley in said cause, on the point that the complainant had ratified the sale of the lands in controversy by H. F. Lewis to said Dudley, or had received the purchase money from said Lewis. This application is granted by the court, on the following conditions: (1) That said Dudley, within 10 days from the adjournment of the present term of the court, shall file with the register of this court a bond in the penal sum of $30,000, payable to complainant, executed by said Dudley, to be approved by the register of this court, conditioned to pay and satisfy any decree rendered or recovery had by the complainant or her personal representatives in this cause; and said bond must contain on its face an express provision that this court may render its decree in this cause against any or all of the obligors therein for the amount or amounts for which a decree may be rendered against said Dudley or his personal representatives, and award execution against any or all of the securities on said bond, as soon as an execution is returned, "No property," or unsatisfied, against said Dudley or his personal representatives. (2) That the said John Dudley shall, within said 10 days, pay to the register $50 of the costs in this cause. (3) That if said John Dudley shall fail to execute and file such bond with the register within said 10 days, or shall fail to pay said $50 of the costs within said 10 days, then the aforesaid continuance of this cause, the aforesaid grant of said application of said Dudley to examine said witnesses, is revoked and annulled, and this cause is then forthwith to be submitted to the chancellor, with all the pleadings and proofs, and the agreements used and produced in the cause on the former trial at the last term; and the said chancellor shall, in vacation, proceed to make all orders and decrees in this cause which he could lawfully make in term time; and all such orders and decrees shall have the like effect as if made in term time, including references, confirmation of register's reports, appointment of trustees, award of writ of possession, etc. (4) If said costs are paid and said bond executed and filed within said 10 days, then the examination of said witnesses may be had, but must be obtained upon the usual interrogatories and notice, and subject to all legal objections and exceptions by or on behalf of complainant; and said Dudley is to come to trial at the next term of this court, and to make no further application for continuance or delay. And the said Dudley accepts the said terms and conditions herein-above set forth.' " Dudley v. Witter, 51 Ala. 457, 458.

All the conditions of this order of continuance were met. The bond specified was made by John Dudley, Sr. The co-obligors thereon were W. C. Kirkland, Joseph R. Dudley, Bolling H. Dudley, and Mrs. Sarah H. Reese. The condition of that obligation, made payable to Mary D. Witter, as the order of the court required, was as follows: "The condition of the above obligation is such that, whereas the said John Dudley, who is known as John Dudley, Sr., is a defendant to a suit pending in the chancery court of said county of Lowndes, in favor of the said Mary D. Witter, by her next friend, against the said John Dudley and others; and whereas, at the October term, 1868, of the said chancery court the said John Dudley applied to said court for a continuance of said suit, and also for leave to examine certain witnesses, named in the minutes of said court at said term, which application was granted by said court on certain terms and conditions, shown in the entry on the minutes of said court at said term, which entry is here referred to as a part hereof; and whereas the execution of such a bond as this is part and parcel of said terms and conditions: Now, if the said John Dudley, Sr., shall pay and satisfy any decree rendered or recovery had in said suit by the complainant or her personal representatives, then this obligation shall become inoperative and of no effect; otherwise to be and remain in full force and effect. And we hereby consent and agree that the said chancery court may render its decree in said suit against any or all of us, for the amount or amounts for which a decree may be rendered against the said John Dudley or his personal representative, and award execution against any or all of us who are his securities on this bond as soon as an execution is returned, 'No property,' or unsatisfied, against the said John Dudley or his personal representative." Dudley v. Witter, 51 Ala. 458, 459.

The revivor stated having been effected after John Dudley's death, "at the October term, 1872, the register having reported the amount due for rents and profits, as agreed on between the parties, at $10,000, his report was confirmed and the cause was submitted for final decree on pleadings and proof." The following decree was rendered: "It is therefore ordered, adjudged, and decreed by the court that the complainant recover of the said Milton R. Dudley, as the administrator of the estate of the said John Dudley, deceased, and of the obligors on said bond--this is to say, W. C. Kirkland, S. H. Reese, J. R. Dudley, and B. H. Dudley--the said sum of $10,000, reported to be due to the complainant, for the rents and profits of the said lands, by the said report of the register, with interest on said sum from the 30th day of September, 1872, and the costs of this suit, to be taxed by the register. It is further ordered, adjudged, and decreed that the register of this court issue the writ of fieri facias against the said Milton R. Dudley, as the administrator of said John Dudley, deceased, commanding the officer into whose hands said writ may be placed to make the said sum of $10,000, with interest and costs of suit, of the goods and chattels of the said John Dudley, deceased, unadministered in the hands of his said administrator; and that, if said writ is returned unsatisfied, the register must thereupon, forthwith, issue the writ of fieri facias against all of the obligors on said bond for the said sum of $10,000, with interest and costs of suit, indorsing, however, on said fieri facias any payments or collections made on the writ against the said administrator. It is further ordered, adjudged, and decreed that...