Moragne v. Doe ex dem. Moragne

• Decision Date: 11 May 1905
• Citation: 143 Ala. 459,39 So. 161
• Parties: MORAGNE ET AL. v. DOE EX DEM. MORAGNE ET AL.
• Court: Alabama Supreme Court

39 So. 161

143 Ala. 459

MORAGNE ET AL. v. DOE EX DEM. MORAGNE ET AL.

Supreme Court of Alabama

May 11, 1905

Appeal from City Court of Gadsden; John H. Disque, Judge.

"To be officially reported."

Ejectment by Eula Moragne and others against J. M. Moragne and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Rehearing denied June 30, 1905.

James Aiken, for appellants.

Dortch & Martin and Goodhue & Blackwood, for appellees.

DOWDELL J.

This is a common-law action of ejectment to recover an undivided one-ninth interest in and to the iron ore contained in and upon a certain tract of land described in the complaint. Five demises were laid in the complaint, any one of which, being supported by the evidence, would entitle the plaintiff to a judgment, as much so as if all were made out. The right to maintain an action of ejectment to recover a mineral interest in lands was decided by this court in the case of Alabama State Land Co. v. Thompson, 104 Ala. 570, 576, 16 So 440, 53 Am. St. Rep. 80, wherein a judgment was here rendered in favor of the plaintiff in a common-law ejectment suit for the recovery of all of the minerals in a certain tract of land.

The fifth demise laid in the complaint counts upon title in C. W Ewing, T. G. Ewing, and Annie D. Paden, as the administratrix of John S. Paden, deceased. The evidence showed that the title to the entire tract of land in controversy was originally in John S. Moragne. Upon the death of said John S Moragne in 1881, the title vested in his eight children. In the year 1882 John B. Moragne, one of the heirs at law of said John S. Moragne, conveyed his undivided one-eighth interest to appellant J. M. Moragne, reserving and excepting the mineral interest. On the 19th day of November, 1891, John B. Moragne conveyed the mineral interest in these lands to Eula L. Moragne. On the 16th day of January, 1892, J. E. Hale obtained a judgment in the city court of Gadsden against John B. Moragne. On the 23d day of May, 1882, Wm. Chandler sheriff of Etowah county, after having levied an execution thereon, and after sale under said levy, executed a deed conveying whatever interest John B. Moragne might still have in the lands to J. E. Hale. On the 31st day of May, 1894, J. E. Hale, John B. Moragne, and Eula L. Moragne united in a deed conveying the mineral interest in question to the Paden-Ewing Hardware Company. The Paden-Ewing Hardware Company was a partnership; John S. Paden, C. W. Ewing, and T. G. Ewing being the members composing the same. The evidence showed that John S. Paden died in 1896, and that Annie D. Paden became and is still the administratrix of the estate of John S. Paden, deceased. There can be no doubt of the right of an administrator to maintain ejectment to recover possession of real estate of his intestate, and this without regard to whether, when recovered, it is intended for distribution or the payment of debts. Pendley v. Madison's Adm'r, 83 Ala. 484, 3 So. 618; Morgan v. Casey, 73 Ala. 222; Leatherwood v. Sullivan, 81 Ala. 458, 1 So. 718; Landford v. Dunklin, 71 Ala. 594. The case of Tarver v. Smith, 38 Ala. 135, cited by counsel for appellant, is not in point. The administratrix here is not joined with the heirs at law of the intestate, but those who are joined with her as coplaintiffs in the fifth demise laid in the complaint are co-tenants of her intestate in the interest sued for.

The deed from Burns, as sheriff, to Dunlap, on which the defendants base a claim of title to the mineral interest sued for, is subsequent in execution to the deed of Chandler to Hale, relied on by plaintiffs, both deeds purporting to convey the interest of John B. Moragne, and is inferior as a conveyance of title to the latter deed, unless priority is given it on the doctrine of lis pendens, as contended for by appellant. The deed from Burns to Dunlap was made under a sale on execution issued on a decree for costs in a suit in equity. The theory of lis pendens is based on the pendency of a bill in chancery, filed by an heir at law of John S. Moragne, deceased, for the removal of the administration of the estate, which had been committed to a special administrator, into chancery, for the purpose of the settlement of...