Mobile & M. Ry. Co. v. Gilmer

• Decision Date: 08 December 1888
• Citation: 85 Ala. 422,5 So. 138
• Court: Alabama Supreme Court
• Parties: MOBILE & M. RY. CO. v. GILMER.

5 So. 138

85 Ala. 422

MOBILE & M. RY. CO. v. GILMER.

Supreme Court of Alabama

December 8, 1888

Appeal from circuit court, Lowndes county; SAMUEL H. SPROTT, Judge.

Action by George N. Gilmer against the Mobile & Montgomery Railway Company, a company composed of the consolidated companies of the Alabama & Florida Railroad Company and the Mobile & Great Northern Railroad Company, for damages for breaches of covenants contained in an instrument executed by the president of the Alabama & Florida Railroad Company at the time of a conveyance by plaintiff to that company of a right of way over his land, whereby the company undertook to establish a flag station on his land, and stop trains for the purpose of receiving passengers and freight, and to permit him to cultivate the right of way so long as it did not interfere with the requirements of the railroad. The defendant demurred to the complaint, and to each breach assigned, specially assigning the following (with other) grounds of demurrer: (1) That the facts alleged do not show that the covenants run with the land; (2) that no cause of action is shown against the defendant; (3) that the facts stated do not show that the defendant is bound to perform the covenants contained in the written instrument set out; (4) that the breaches assigned are vague, indefinite, and uncertain; (5) "that it is not alleged that the stopping of defendant's trains, at the times alleged, would not have interfered with the running of schedule;" (6) "that it is not averred that the said parts of the right of way were not used by defendant, nor that the cultivation of said right of way by the plaintiff would not have interfered with the wants and requirements of the defendant." The court overruled the demurrer, and the defendant then filed the following pleas: "(1) Defendant denies all and every allegation of the complaint, with leave to give in evidence any matter of defense under this issue (2) statute of limitations of one year; (3) the statute of six years; (4) the statute of limitations of ten years; (5) defendant denies each breach alleged in the complaint; (6) the defendant pleads the general issue to the matters alleged in the complaint." The court sustained a demurrer to the first, second, and third pleas, and the cause was tried on issue joined on the others. Judgment for plaintiff, and defendant appeals.

Watts & Son, for appellant.

Thorington & Smith, for appellee.

SOMERVILLE J.

1. In Gilmer v. Railway Co., 79 Ala. 569, we decided that the covenants for the breach of which the present action is brought were such as would be construed to "run with the land," so as to be binding in law upon the defendant corporation, as assignee of the original covenantor, if chargeable with notice of the existence of these covenants. We are satisfied with this conclusion as one fully sustained by judicial authority. Morse v. Gardner, 47 Amer. Dec., note on pages 569-577, and cases cited.

2. We also adhere to the conclusion that the demurrer to the complaint was properly overruled. Its averments show with sufficient certainty a total breach of the alleged covenant to establish and continue a flag station or depot on the plaintiff's land, where both passenger and freight trains would stop, on the giving of proper and usual signals, for the transportation of passengers and certain kinds of farm produce. If the stopping of the trains, as agreed to be done, would have seriously interfered with the running of the company's schedule, this was matter of defense, to be averred and proved by the defendant, as coming more properly within the knowledge of the railroad officials than that of the plaintiff. So with the covenant to permit the plaintiff to cultivate the right of way granted by him, "so long as the privilege might not interfere with the wants and requirements of the railroad." This would also be matter of defense, the onus of averring and proving which was on the defendant, without the necessity of its being negatived by plaintiff in the first instance.

3. The instrument sued on purports to be executed by Charles T. Pollard, president, for and in behalf of the Alabama & Florida Railroad Company, and is under seal. The defendant company is the successor of that corporation, and is in possession of the right of way in controversy, claiming by privity of ownership from said corporation. The complaint avers facts which show that the covenants sued on run with the land, and are as binding in law on the defendant as they were on the original grantee and covenantor. Under this state of the pleadings, the circuit court properly ruled that, in the absence of a sworn plea of non est factum putting in issue the execution of the paper, it was admissible in evidence without preliminary proof of its execution. It is true that a strict construction of the statute would confine this privilege to the written instruments which are the foundations of suits, and which purport to be "signed by the defendant, his partner, agent, or attorney in fact." Code 1886, § 2770. But, construing this section in connection with other sections of the Code on the same subject-matter, our decisions have given a more liberal interpretation to it. Section 2676 of the Code requires every plea to be sworn to which denies the execution by the defendant of any written instrument, the foundation of the suit, or the assignment of the same, whether it purports to be signed by him or not. This includes all cases where the instrument declared on is averred to be the defendant's act in law, or is shown by proper allegations of fact to impose a legal obligation or duty on him. Lazarus v. Shearer, 2 Ala. 718. So, under section 2771, "it is not necessary to prove the execution or assignment of any instrument offered in evidence under the plea of set-off, or other plea in bar, unless the plaintiff put the execution or assignment thereof in issue by a replication verified by affidavit." Code 1886, § 2771. The purpose of these various statutes is to require the defendant to put in issue, by sworn plea, every written instrument which is the foundation of the suit, and which, taken in connection with the averments of the complaint, imposes on him the same legal obligation or duty which it purports to impose on the maker or obligor who signed it. A familiar illustration of the principle is found in a suit against an executor or administrator on a paper executed by a deceased testator or intestate. It applies where, by privity of law or estate, the obligations of an instrument are cast on a defendant, although he did not sign the paper in person. Mining Co. v. Brainard, 35 Ala. 476; Railroad Co. v. Trebles, 44 Ala. 255; Bryan v. Wilson, 27 Ala. 208; McWhorter v. Lewis, 4 Ala. 198; Wimberly v. Dallas, 52 Ala. 196. This construction is strengthened by the fact that if, in an action of covenant, averring breaches, the deed or instrument is not put in issue by the plea of non est factum, the defendant, even by the rules of common law, was understood to admit so much of the instrument as is set out in the declaration. 2 Greenl. Ev. §§ 234, 247; Tyler, Steph. Pl. 171.

4. The demurrer to the first plea of the defendant was properly sustained. Being a general denial of all the allegations of the complaint, it was a denial of the execution of the written instrument which was the foundation of the suit, and should have been supported by affidavit. The want of such affidavit is a defect which is available on demurrer. McWhorter v. Lewis, 4 Ala. 198; Bryan v. Wilson, 27 Ala. 208.

5. The action, being founded on a writing under seal, would not be bound by any period of limitation less than 10 years. Code 1886, § 2614. The demurrers to pleas Nos. 2 and 3, setting up the statute of limitations of one and six years, were properly sustained.

6. To make the contract sued on binding on the Alabama & Florida Railroad Company, in whose behalf it purported to be executed, it was not necessary that the act of Pollard in executing it should have been originally authorized by a resolution of the board of directors, appearing among the corporate proceedings or minutes of the company, nor that it should have been ratified in this manner. The deed of Gilmer granting the right of way, and this instrument executed by Pollard stating the conditions and limitations attending its delivery, were executed contemporaneously, bear the same date, and refer on their face to the same subject-matter. They constitute, therefore, in legal effect, but one instrument, and may be so connected by parol evidence if necessary. Robbins v. Webb, 68 Ala....