Millican v. Mintz

• Decision Date: 07 October 1948
• Docket Number: 7 Div. 937.
• Citation: 37 So.2d 425,251 Ala. 358
• Parties: MILLICAN et al. v. MINTZ.
• Court: Alabama Supreme Court

37 So.2d 425

251 Ala. 358

MILLICAN et al. v. MINTZ.

7 Div. 937.

Supreme Court of Alabama

October 7, 1948

Rehearing Denied Nov. 18, 1948.

Merrill, Merrill & Vardaman, of Anniston, for appellants.

Ross Blackmon, of Anniston, for appellee.

BROWN Justice.

This is a statutory action in the nature of ejectment under § 938, Code of 1940, Title 7, by appellee Mintz against appellants Millican and wife and Dooley instituted October 22, 1945. The complaint as first filed contained three counts. Count one claims a segment of land 579 feet in length 'running east and west and 175 feet and 4 inches in width situated in the southwest corner of the NE-1/4th of the SE-1/4th of Section 22, Township 13, Range 7 East, Calhoun County.' The second count claims a segment of land 556 feet and 4 inches in length running east and west and 112 feet wide running north and south in the SW corner of the SW-1/4th of the NE-1/4th of said Section 22. The third count claims a segment in the South 1/2 of the NE-1/4th of said Section 22 described as 'Beginning at a point 112 feet and 5 inches from the Southwest Corner, of the South half of SW-1/4 of NE-1/4, Section 22, Township 13, Range 7 on the West line of said property and extending thence north a distance of 208 feet, thence East a distance of 33 feet, thence South of equal width a distance of 208 feet, thence West a distance of 33 feet, to the point of beginning, * * *.'

On the first trial by their 'Plea No. 1' defendants disclaimed possession of the premises sued for in the complaint. Defendants' 'Plea No. 2' as amended disclaimed possession of the several segments of land described in said complaint and suggested that the law suit involved a boundary line between plaintiff's property and defendants' property and specifically defined the line by courses and distances supported by monuments set up in a survey. To said plea 2 the plaintiff filed three separate replications. Replication one joined issue on defendants' plea 2. In said replication it is averred that plaintiff is the owner and has been in possession of the land which is the subject of the controversy between himself and defendant in this pending suit; that he and his predecessors in ownership title and possession of said land (the subject of the controversy in the pending cause) for more than twenty years immediately preceding the filing of the suit have had adverse possession of said lands.

Replication 3 avers that there was a survey made of said lands by W. T Morton approximately fifteen years ago, that subsequent surveys were made by E. H. Lee, setting forth the several tracts as laid off in the government survey, describing the monuments and markings. That 'the various lines of the Morton Survey traversed the old division lines between the quarter sections, as herein mentioned, which said division lines had been duly and fully recognized by the coterminous owners for more than twenty years prior to August 25th, 1945, in fact had been so recognized for a period exceeding one-half a century. The division line between the NW-1/4 of the SE-1/4 of the NE-1/4 is further marked by an old hedge row, and division fence; and the West line dividing the SW-1/4 of the NE-1/4 and the SE-1/4 of the NW-1/4 is further marked by an old hedge row, which has been in existence for more than twenty years and which was acquiesced in by the coterminous owners as being the true and correct line for more than twenty years prior to the 25th day of August.'

On the issues thus formed the first trial was had resulting in a verdict and judgment for defendants from which plaintiff appealed and the judgment was reversed for errors committed by the circuit court in rejecting plaintiff's proffered evidence going to show adverse possession. Mintz v. Millican et al., 248 Ala. 683, 29 So.2d 230.

On the trial following reversal the defendants withdrew their plea 2 as originally filed and as amended and the plaintiff amended his complaint by adding counts A and B. Count A claimed a strip of land 179 feet in width extending across the north end of the SE-1/4 of the SE-1/4 of Section 22, Township 13, Range 7 East to the west line of said quarter section a distance of 1345 feet. Count B claimed a strip of land 46 feet and 4 inches in width extending across the north end of the NW-1/4 of the SE-1/4 1345 feet to the west line of said quarter section. To said counts the defendants interposed the plea of not guilty.

The effect of the reversal of the judgment of the circuit court on the first appeal was to vacate and annul all rulings on the pleadings leaving the issues opened to be reframed by the parties on the subsequent trial. Alabama City G. & A. R. Co. v. Bates, 155 Ala. 347, 46 So. 776; Marsh v. Elba Bank & Trust Co., 205 Ala. 425, 88 So. 423. And the effect of the withdrawal by defendants of the statutory suggestion that the controversy was over a disputed boundary line withdrew that issue from the case and plaintiff's replication fell with such withdrawal. Only the defendants were authorized by the statute to inject that issue in the case. Code of 1940, Title 7, § 942.

On defendants' filing the plea disclaiming possession and title to the segments of land as described in counts 1, 2 and 3 of the original complaint, plaintiff had the option to take judgment for the lands claimed in said counts or join issue on the disclaimer and, if he could, to prove defendants were in possession and recover damages. Wade v. Gilmer, 186 Ala. 524, 528, 64 So. 611; Pennington v. Mixon...