Pendley v. Madison

• Decision Date: 30 January 1888
• Parties: PENDLEY v. MADISON.
• Court: Alabama Supreme Court

3 So. 618

83 Ala. 484

PENDLEY v. MADISON.

Supreme Court of Alabama

January 30, 1888

Appeal from circuit court, Walker county; S. H. SPROTT, Judge.

Statutory action in the nature of ejectment. The present action was brought by A. W. Madison, as the administrator of the estate of John Madison, deceased, against Jesse Pendley, and was commenced in September, 1885. The complaint contained two counts in the statutory form for ejectment. The defendant demurred to the complaint on the ground, among others, that the plaintiff sues in his representative capacity as administrator of the said John Madison, deceased. The court overruled the demurrer; the defendant excepted, and then pleaded the general issue, and specially pleaded the statute of limitations and adverse possession. On the trial of the case, as shown by the bill of exceptions, the plaintiff introduced a deed from one Whitson to his (plaintiff's) intestate, John Madison, made in 1853, and conveying the land in controversy, and then introduced evidence tending to show that said John Madison went into possession of said land at the time of the said deed, and controlled it up to the time of his death, which occurred in 1866; that at his death he left a will which was duly probated, and which was read in evidence; that in said will all of said John Madison's property, including the land in controversy, was left to his wife, giving her a life-estate and interest therein, and after her death it was to go to his heirs, and be distributed among them under the laws of the state of Alabama; that at his death he left surviving him his widow, Susan Madison, and five children; that said Susan Madison died in September 1884; that plaintiff was appointed administrator of the estate of said John Madison in 1885, and then brought this suit. The defendant read in evidence a deed to the land sued for, made by said Susan Madison on September 7, 1867, to one William Hisan. The defendant then introduced said William Hisan as a witness, who testified that he bought the land in controversy from said Susan Madison in 1867, went into possession thereof in that year, and remained in undisputed possession until 1873, when he sold the said land to the defendant in this suit, Jesse Pendley. Then other evidence was introduced by the defendant, tending to show that he had been in possession, open and notorious, and had cultivated and exercised ownership over the said land from the date of the deed from said Hisan up to the time when the present suit was brought. The court charged the jury "that, if they believed the evidence, they must find for the plaintiff;" to which charge the defendant duly excepted. The ruling of the court on the demurrers, and the giving of the above charge, is now assigned as error.

Brickell, Sample & Gunter, for appellant.

NeSmithe & Sandford, for appellee.

SOMERVILLE J.

1. The present action, which is one of ejectment under the statute, was properly brought in the name of the personal representative of the deceased testator, whether his purpose was to recover the lands with the intention to sell them for distribution, or for the payment of debts. The right to maintain the action is conferred on the personal representative, by the statute, and in this case is instituted against strangers, and not against the remainder-men under the testator's will. Morgan v. Casey, 73 Ala. 222; Leatherwood v. Sullivan, 81 Ala. 458, 1 South. Rep. 718; Landford v. Dunklin, 71 Ala. 594.

2. Both parties to the suit claim to have derived title...