Morring v. Tipton

• Decision Date: 16 May 1900
• Parties: MORRING v. TIPTON ET AL.
• Court: Alabama Supreme Court

28 So. 562

126 Ala. 350

MORRING v. TIPTON ET AL.

Supreme Court of Alabama

May 16, 1900

Appeal from circuit court, Madison county; H. C. Speake, Judge.

Ejectment by Sallie Morring against Amanda Tipton and another. From a judgment for defendants, plaintiff appeals. Reversed.

This was a statutory action of ejectment, brought by the appellant, Sallie Morring, against Amanda Tipton and Calvin Tipton. It was tried on issue joined on the plea of not guilty. The evidence showed that the real estate in suit was on and prior to June 25, 1898, owned by one Adeline Elledge who died on that date, leaving surviving her six children, to wit, Ada Preston, Amanda Tipton, William Elledge, Mollie Calahan, Malda Derrick, and Mattie Parcus. The plaintiff (appellant here) then offered in evidence a deed from Ada Preston and the other said heirs of Adeline Elledge with the exception of Amanda Tipton. This deed was excluded as evidence by the court on the motion of defendants (appellees here) on the ground that the deed did not describe the lands sued for, and an exception was reserved by appellant to this ruling. The appellant then offered in evidence a deed from S M. Morring, as administratrix of G. A. Morring, to William Elledge and Amanda Tipton. This deed purported to have been executed by the grantor in pursuance of a certain agreement between G. A. Morring and Adeline Elledge, both deceased. It purports to convey to William Elledge five-sixths interest in the lands in suit and one-fifth interest in the same to Amanda Tipton. In connection with the deed, appellant offered the testimony of the attorney who wrote the deed, showing that it was written with the advice and consent of the defendant Calvin Tipton. The deed purported to have been executed under authority of section 1069 of the Code. This deed was excluded as evidence by the court, on motion of appellees, on the ground that there was no evidence in writing that any contract had been made by G. A. Morring with Adeline Elledge to convey said lands, and an exception was reserved by appellant to this ruling. Appellant then offered in evidence certain proceedings had in the probate court of Madison county, where a sale of the real estate sued for was effected for partition among the joint owners or tenants in common thereof. These proceedings consisted of: First. A petition filed by William Elledge, which averred that petitioner owned five-sixths interest in the land, and that Amanda Tipton, the appellee, owned one-fifth interest. The petition properly describes the land, gives names, ages, and interest of each heir. Second. Order of probate court fixing date for hearing. Third. Decree of sale, and appointing commissioner to effect same. Fourth. Commission issued to commissioner. Fifth. Report of sale by commissioner. Sixth. Decree of probate court confirming sale and ordering execution of conveyance. Appellant then offered in evidence a deed of T. M. Ramey, commissioner, to S. M. Morring, the appellant. The appellant then offered to prove by F. T. Petty that "F. M. Ramey," who was appointed commissioner by the probate court of Madison county, and "T. M Ramey," to whom said court issued the commission, and who reported the sale, and whom the court ordered to and who did execute the deed, were one and the same person. This evidence was objected to by appellees, and the objection was sustained, and the court refused to allow appellant to make such proof. To this action the appellant excepted. The appellees then moved the court to exclude from the evidence the deed from T. M. Ramey, commissioner, to S. M. Morring, the decree of the probate court confirming the sale made by T. M. Ramey, commissioner, the report made by said commissioner, and the commission issued to said T. M. Ramey, on the ground that under the decree appointing the commissioner T. M. Ramey had no authority to make and report said sale and make a deed to the purchaser. The court sustained the objection, and excluded the records and deed sought to be introduced, and appellant excepted. At the said sale under said probate proceedings appellant became the purchaser. The proceedings were in all other respects regular. By reason of the adverse rulings upon the evidence as above set forth, the plaintiff in the case took a nonsuit with bill of exceptions. Judgment was rendered for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were taken.

S. S Pleasants and Douglass Taylor, for appellant.

J. C King,...