Morris v. Giddens

• Decision Date: 21 December 1893
• Citation: 101 Ala. 571,14 So. 406
• Parties: MORRIS v. GIDDENS.
• Court: Alabama Supreme Court

14 So. 406

101 Ala. 571

MORRIS v. GIDDENS.

Supreme Court of Alabama

December 21, 1893

Appeal from circuit court, Pike county; John R. Tyson, Judge.

Statutory ejectment by J. C. Giddens against Josiah Morris & Co. and others. From a judgment for plaintiff, defendants appeal. Reversed.

E. P Morrisett, for appellants.

R. L Harmon and John D. Gardner, for appellee.

McCLELLAN J.

This is a statutory action in the nature of ejectment. The complaint seeks the recovery of "forty-one (41) acres of land off of the northwest quarter of the southwest quarter of section (2,) township (11,) range (19,) nineteen, lying and being situated in Pike county, Alabama." The judgment follows the complaint, being that "plaintiff have and recover of the defendants the following described lands, to wit forty-one acres off of the N.W. 1/4 of S.W. 1/4 of section 2 township 11, range 19, lying and being situated in Pike county, Alabama." On the trial there was evidence offered by the plaintiff himself, which tended to show that the land of which he had been in the adverse possession through which he derived the title relied on in the action, was "forty-one (41) acres off of the north and west side of the north half of southwest quarter of section 2, township 11, range 19, in Pike county." The jury might have believed this evidence. They had a right to do so. If they had found that the only title shown by plaintiff by adverse possession or otherwise was of 41 acres off the N. 1/2 of S.W. 1/4 section 2, township 11, range 19, their verdict should have been for the defendant, Forty-one acres off the N. 1/2 of S.W. 1/4 of section 2, etc., whatever it may be, is certainly not the same as 41 acres off of N.W. 1/4 of S.W. 1/4 of section 2, etc. The latter description would have reference alone to a certain sixteenth of a section, and no land beyond that is embraced. The former has reference to a certain eighth of a section embracing the sixteenth named in the complaint and judgment, and also another sixteenth lying immediately east. The complaint calls in reality for all of the N.W. 1/4 of S.W. 1/4, and no more, even though that contains only 40 acres. The evidence to which we have adverted called for a strip of land of uncertain and unascertainable width, extending along the north side of the N. 1/2 of S.W. 1/4, embracing, of course, a part of the N.E. 1/4 of S.W. 1/4, and along the west side of said half quarter section, embracing a part, and only a part, of the N.W. 1/4 of S.W. 1/4. There was, therefore, upon this evidence, which the jury were authorized to believe, and which, indeed, does...