Payne v. Crawford

• Decision Date: 08 February 1894
• Citation: 102 Ala. 387,14 So. 854
• Parties: PAYNE v. CRAWFORD.
• Court: Alabama Supreme Court

14 So. 854

102 Ala. 387

PAYNE v. CRAWFORD.

Supreme Court of Alabama

February 8, 1894

Appeal from circuit court, Lee county; J. M. Carmichael, Judge.

Action in the nature of ejectment by Mary A. Crawford against L. W Payne. Judgment for plaintiff. Defendant appeals. Reversed.

The substance of the pleas is sufficiently stated in the opinion as are also the four replications to the first plea, which are considered by the court. To the fourth and fifth replications the defendant demurred on the grounds: (1) Because the facts set forth therein do not show such facts as would set aside the award pleaded by the defendant. (2) Because it fails to show that said agreement was ever acted on or any effort made to carry it out. (3) Because the agreement set out in said replication is void for want of consideration. The demurrer to the sixth and tenth replications are sufficiently stated in the opinion. The bill of exceptions recites, that, "the evidence tended to show, that the plaintiff and the defendant owned and were in possession of two farms, which were coterminous plaintiff's farm lying north and east of defendant's. The contention raised was over two strips of land lying between said farms, the one on the sought and the other on the west of plaintiff's farm. Plaintiff claimed title to her farm by will from her late husband, A. J. Crawford, and he from one Snead and wife. Defendant offered no paper title to himself, but claimed and proved orally, that he bought his farm from one John Crawford, who claimed purchase from Clower. Clower claimed from one Thomas Eady. Snead and Eady were proved to have been in possession, respectively, of their farms, more than twenty years before the trial." Plaintiff also claims, that she was in the actual possession of the land, when the defendant inclosed it, and objected to such action by the defendant. "Defendant inclosed the land in controversy, a few months before the commencement of this suit. Prior to that time, said lands were not inclosed. While some of these had been cultivated, it had been so long ago that large trees had grown up over it. The evidence was conflicting, and tended to support the claims of each party. There was evidence tending to show the original lines to be as each party claimed, *** and acts of ownership over the land in controversy by each party and those from whom they respectively claimed. The acts of ownership of the land by those from whom defendant claimed, were shown to be over fifteen years ago." The bill of exceptions further states, that the defendant did not offer any deed in evidence, or produce the same at the trial, on notice given his attorney to do so, who assigned as a reason at the time of notice (for not doing so) that defendant's deed was lost, as defendant had answered on oath in his deposition taken by plaintiff in this case. There was evidence tending to show, that the deed of defendant did not embrace the lands in controversy; and that he had the deed at the beginning of the suit. The bill of exceptions further recites, "that there was evidence tending to show that plaintiff objected and protested against defendant's putting up his fence around the land in controversy, immediately before he erected the same, and this, if such, was the only evidence tending to show that defendant was a trespasser on the land sued for except that he offered no paper title to it. On this land was a piece of woodland of virgin growth, which has never been cleared, and the only possession of this, claimed by plaintiff, or of which there was any evidence, tending to show that plaintiff ever had possession, was the use of timber and wood from the same; that her husband and sons surveyed and marked out the line, and that she objected to the erection of the fence by the defendant. Defendant did not testify in the case, and on his failure to do so plaintiff's attorney commented in his argument to the jury, and insisted that this fact should be considered by the jury as a circumstance against the defendant's right to the property in controversy. The only evidence offered on the trial of any agreement between the parties to set aside the award of the arbitration pleaded and proved by defendant, was the paper writing set out in the bill of exceptions, and purporting to be an agreement to refer the matter in dispute to a second arbitration."

The deed from Snead and wife to plaintiff's husband, A. J. Crawford, to plaintiff's farm adjoining defendant's, was read in evidence, against the objection and exception of defendant. The bill of exceptions states that "there was evidence tending to show that the description in said deed covered the lands sued for." As stated in the bill of exceptions, the only evidence introduced tending to show that the defendant's deed did not embrace the land in controversy, was that of one Peterson, the county surveyor of Lee county, who, having been examined as a witness for the defendant, was asked, upon cross-examination, the following question: "If he did not tell one Jones at a certain time and place that the defendant told him his deed did not cover the land in controversy?" This Peterson denied. Afterwards said Jones was introduced as a witness for the plaintiff, and was asked the following question: "If Peterson did not tell him (Jones) at a certain time and place that defendant told him his deed did not cover the land in controversy?" The defendant objected to this question because it was illegal, irrelevant and immaterial; and duly excepted to the court's overruling his objection. The witness Jones answered that Peterson did make such a statement to him. The defendant moved to exclude this answer, and excepted to the court's overruling his motion. The plaintiff being on the stand as a witness in her own behalf stated "that she knew of the survey made by her husband in his lifetime and the line between the places of plaintiff and defendant during the time that defendant's place was owned by John Crawford, but when the latter was not present ***; and that her said husband pointed out to witness the dividing line between said two places, as shown by said survey, while upon the land, and that said line placed the land in dispute on the Crawford place;" and further "that her husband had pointed out the line to her as she claimed it to be, between the places of plaintiff and defendant, and when he did so said that we are right on the line." The defendant moved to exclude each of these statements, because each was illegal, and irrelevant and incompetent evidence, and "it was permitting a party to make testimony for himself." Each of these motions were separately overruled by the court, and the defendant separately excepted. The plaintiff further stated "that while she and her husband were on a certain graveyard lot, which consisted of one acre and was used by colored people, and which is situated on the land in controversy, that her husband said he had sold and delivered said lot to some negroes." The defendant objected to this statement and moved to exclude the same, because it was illegal and incompetent; which motion the court overruled, and the defendant duly excepted. Jack Crawford, a son of the plaintiff, being on the stand as a witness in behalf of the plaintiff, after having stated that he knew where the southwest corner of the Crawford place was, from the declaration of his father made, while in the possession of the tract of land, was asked the following question: "Where the southwest corner of the Crawford place was?" The defendant objected to this question, on the ground that it was illegal and called for hearsay evidence; and duly excepted to the court's overruling his objection. The witness stated "that said corner was where the plaintiff claimed it to be in this controversy." The defendant moved to exclude this answer, and duly excepted to the court's overruling his motion. One Torrence, a witness for the plaintiff, after having shown himself to be a surveyor of many years' practice and experience, and after having admitted "that a survey of the plaintiff's land could not be made from plaintiff's deed without oral testimony," and that the corner of the respective properties had been pointed out to him by the said Jack Crawford, was permitted to testify, against the defendant's objection and exception, to the correctness of the survey made by him in which he, the said Torrence, established the lines of the land in controversy between the plaintiff and defendant as contended for by plaintiff in this suit.

The court, in its general charge to the jury instructed them among other things, as follows: "If the parties to this controversy submitted the matters in dispute between them to an arbitration and an award was made and the parties subsequently agreed to have another arbitration, this had the effect to do away with the original or first arbitration and the award under it, and they can have no effect or influence in this case." The defendant duly excepted to this portion of the court's general charge. The court, at the request of the plaintiff, gave each of the following written charges: (1) "If the jury find from the evidence that Payne has inclosed within his wife fence 1 1/2 acres of land in section 28 and if the deed from Snead to Crawford shows that the line between sections 28 and 29 if the true line of Crawford, then the plaintiff is entitled to recover that 1 1/2 acres." (2) "In determining where the southern boundary of Crawford's land is the jury may look to the fact, if it be a fact, that Payne's wire fence begins at the southern extremity of the graveyard in connection with all the other evidence in the case." (3) "If the jury find from the evidence that Mrs. Crawford was in possession of the disputed land claiming to own...