Pearce v. Mills

• Decision Date: 17 December 1914
• Docket Number: 730
• Citation: 67 So. 581,190 Ala. 616
• Parties: PEARCE v. MILLS et al.
• Court: Alabama Supreme Court

67 So. 581

190 Ala. 616

PEARCE v. MILLS et al.

No. 730

Supreme Court of Alabama

December 17, 1914

Appeal from Circuit Court, Marion County; C.P. Almon, Judge.

Statutory ejectment by Lissie Mills and others against James P. Pearce. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

E.B. &amp K.V. Fite, of Hamilton, and A.H. Carmichael, of Tuscumbia for appellant.

Ray &amp Cooner, of Jasper, for appellees.

DE GRAFFENRIED, J.

James P. Pearce held a mortgage on certain lands which belonged to William W. Mills. The mortgage was executed by Mills, and there was evidence tending to show that Pearce was in possession of the land under and by virtue of the said mortgage or of a sale of the lands described in the mortgage made by Pearce as assignee of said mortgage under the power contained in the mortgage and at which sale he became the purchaser. William W. Mills is dead, and this suit in statutory ejectment was brought by the widow and heirs of Mills against Pearce to recover possession of the land.

The plaintiff introduced two witnesses, who testified that, prior to his death, William W. Mills in their presence delivered to Pearce more than enough cotton to pay off the mortgage, and that it was then agreed between Mills and Pearce that the mortgage was paid in full, and that the balance of the proceeds of the sale of the cotton would be credited by Pearce on the store account of Mills with Pearce. These two witnesses gave testimony to all that occurred in the alleged conversation with Pearce. For the purpose of contradicting these witnesses--and for no other purpose, as Mills is dead and Pearce is a party to a cause in which the estate of Mills is interested--Pearce was permitted by the trial judge to testify that he had no such conversation with the said deceased as was testified to by the said witnesses. The two witnesses who testified to the above alleged agreement stated that it was made either in the latter part of the year 1902 or in the latter part of the year 1903, but the witnesses were unable to say which year.

It appears from the evidence that Pearce is a merchant, and that Mills during the years 1902 and 1903 obtained his supplies from Pearce. The main features of the plaintiff's case depend upon the veracity of the two witnesses above referred to, or at least upon the integrity of their recollection, and these witnesses give their recollection as to the details of a...