McNeil v. Davis

• Decision Date: 07 February 1895
• Citation: 17 So. 101,105 Ala. 657
• Parties: MCNEIL ET AL. v. DAVIS ET AL.
• Court: Alabama Supreme Court

17 So. 101

105 Ala. 657

MCNEIL ET AL. v. DAVIS ET AL.

Supreme Court of Alabama

February 7, 1895

Appeal from circuit court, Henry county; J. M. Carmichael, Judge.

Ejectment by John T. Davis and another against Pauline McNeil and Daniel McNeil, her husband. Judgment for plaintiffs, and defendants appeal. Reversed.

John T Davis and son, appellees, brought a statutory action of ejectment against the appellants, Pauline McNeil and her husband, Daniel McNeil, to recover certain property described in the complaint. The defendant pleaded the general issue and, by two special pleas, that, at the time of the execution of the mortgage under which the plaintiffs claim the title to the land sued for, Mrs. Pauline McNeil, one of the defendants, was the wife of Daniel McNeil, and that the property conveyed in the mortgage was her separate estate and that the mortgage was made to secure a debt of her husband. The contention of the plaintiffs is shown in the opinion. The defendants introduced evidence which substantiated their several pleas. There was judgment for the plaintiffs, and defendants appeal. The assignments of error are based upon the giving of the charges requested by the plaintiffs, and the refusal to give the several charges asked by the defendants, to each of which rulings the defendants separately excepted.

G. L Comer, for appellants.

T. W. Espy, for appellees.

COLEMAN J.

The appellees brought the statutory action of ejectment against Pauline McNeil to recover a certain lot or parcel of land which was claimed as her separate estate. The plaintiffs' title was that of transferees of a mortgage of the property sued for, executed by Pauline McNeil and her husband to one Purcell the title to which, by proper conveyance, was transferred by Purcell to plaintiffs. The defendants pleaded the general issue and two other special pleas, and the case was tried upon issue joined. The errors assigned are based upon the instructions given for plaintiffs, and the refusal of the court to instruct the jury as requested by the defendants.

We will state the facts as contended for by the plaintiffs: One Brantley, with McNeil & Co. and Purcell as sureties, executed a promissory note to plaintiffs to procure a loan of money to Brantley. McNeil, of the firm of McNeil & Co., was the husband of Pauline McNeil. To induce Purcell to sign the note as surety, Pauline McNeil and her husband executed the mortgage to...