Pittman v. Pittman

• Decision Date: 10 January 1900
• Citation: 27 So. 242,124 Ala. 306
• Parties: PITTMAN ET AL. v. PITTMAN.
• Court: Alabama Supreme Court

27 So. 242

124 Ala. 306

PITTMAN ET AL. v. PITTMAN.

Supreme Court of Alabama

January 10, 1900

Appeal from circuit court, Randolph county; B. B. Bridges, Special Judge.

Action by W. W. Pittman and others against William A. Pittman. Judgment for defendant. Plaintiffs appeal. Affirmed.

This was a statutory action of ejectment, brought by the appellants, W. W. Pittman and others, against the appellee William A. Pittman. The appellants claim as heirs of J. M Pittman, deceased. The description of the lands claimed, and the derivation of title of the plaintiffs and defendant respectively, are shown in the opinion. The evidence for the plaintiffs tended to show that the lines of the section subdivisions of the lands which were purchased by the plaintiffs' ancestor, and which were sold by deed to the defendant, were indefinite and unknown until after the death of J. M. Pittman, the plaintiffs' ancestor; that, after the death of J. M. Pittman, one of the plaintiffs saw the defendant, and told him that the plaintiffs were thinking of selling their father's lands, and wanted to run the lines of said lands; that in this conversation the defendant told one of the plaintiffs where the lines were run, and that in running the line the surveyor ran them in accordance with such direction of the defendant, and that said lines showed that the lands in dispute belonged to the plaintiffs; that this was in October, 1889, and that at said time the defendant made no claims to the lands in dispute; that this line was run by one Swint, the county surveyor; that the taxes on the lands involved in this controversy were paid by the plaintiffs' ancestor. The testimony for the plaintiffs further tended to show that there was included in the lands involved in the suit a certain tract of woodland containing about 10 or 15 acres; that this woodland was uninclosed, and had never been in the actual possession of the defendant, and that the defendant had never exercised any acts of ownership over it, but that the plaintiffs' ancestor and the plaintiffs themselves had exercised ownership over it. Plaintiffs' testimony further tended to show that in 1889 or 1890, when the litigation in reference to the lands in controversy was first instituted the defendant abandoned said lands, or any claim thereto. In addition to the defendant's evidence, which is set out in the opinion, the evidence for the defendant further tended to show that from 1867 down to 1889 the defendant cut timber from the tract of woodland included in the lands in controversy; that he cut firewood from said lands, and that his tenants cut firewood from said woodland. The defendant offered in evidence the deposition of Mrs. Mary Pittman, who was his sister and the sister of the plaintiffs' ancestor. The fifth interrogatory propounded to Mrs. Pittman was as follows: "State whether or not you ever heard J M. Pittman, deceased, say anything in regard to the land in dispute in this case. If so, state what he said, when he said it, where he said it, and all of whom were present when he said it." To this interrogatory the witness answered as follows: "I had a conversation with J. M. Pittman, deceased, in reference to the land, and cannot say that any one but he and I were present at his house, when he stated, in response to a question by me as to who owned the Mal Taylor old place [in which was included the lands in controversy], and he said he and Lonzo [the defendant] owned it. He said, 'You recollect how the road run,' and said, 'What is on this side of the road belongs to me, and what is on the other side belongs to Lonzo.' The best of my knowledge is that this was in 1867." The plaintiffs objected to the answer to the fifth interrogatory, and moved to exclude the same on the ground that it seeks to make title to land by hearsay evidence or by parol, and that said testimony was incompetent, illegal, and irrelevant. The court overruled this objection. To this ruling the plaintiffs duly excepted. This ruling constitutes the basis of the first assignment of error. The defendant introduced in evidence his own deposition. The thirteenth interrogatory which was propounded to said defendant was as follows: "If at any time while you were in possession of said disputed land you claimed said land as your own in the presence of some other person, state where this happened, how many times it happened, and who were present at the time." The plaintiffs objected to this interrogatory, but the bill of exceptions does not state the grounds of such objection. The court overruled the objection, and the plaintiffs duly excepted. In answer to the interrogatory the defendant answered that he claimed the lands as his own at two separate times and places, and that at one of these times and places the claim was in the presence of the plaintiffs. The plaintiffs objected to this answer, and moved to excluded it, but the grounds of the objection and motion are not stated in the bill of exceptions. The court overruled the grounds and motion, permitted the answer to be introduced in evidence, and to this ruling the plaintiffs duly excepted. These rulings constitute the basis of the second assignment of error. During the cross-examination of one A. J. Weathers, a witness for the defendant, the plaintiffs asked him if W. A. Pittman had not told him that he moved the fences which were around a part of the land involved in this controversy back to the line as run by Mr. Swint, the surveyor. The witness answered that he told him he moved a part of it. On redirect examination of this witness the defendant asked him to state the whole conversation about moving the fence. The plaintiffs objected to this question, because they had not called for such a conversation. The court overruled the objection, and the plaintiffs duly excepted. The third assignment of error is based upon this ruling. Upon the examination of one W. L. Lee as a witness for the defendant he was asked the following question: "Did you ever hear J. M. Pittman say anything about the line [in controversy]?" The plaintiffs objected to this question, the court overruled the objection, and the plaintiffs duly excepted. The fourth assignment of error is based on this ruling. The witness answered that he had, and that J. M. Pittman told him that he and the defendant had deceased to make the road the line between them. Upon the cross-examination of M. P. Pittman, one of the witnesses for the plaintiffs, and who was the son of J. M. Pittman, the defendant asked him "if W. A. Pittman, the defendant, did not own land north of the land in dispute." The plaintiffs objected to this question, on the ground that it called for testimony impertinent to the issue. The court overruled the objection, and the plaintiffs duly excepted. This ruling constitutes the basis of the fifth assignment of error. The witness answered that the defendant did own land north of the land in dispute. Upon the cross-examination of J. M. Pittman, one of the plaintiffs, the defendant asked him the following question: "If his father, J. M. Pittman, didn't own other lands on the east side of Rock Mills and High Shoals road." The plaintiffs objected to this question, on the ground that it did not relate to the land in controversy, and was illegal, irrelevant, and incompetent. The court overruled the objection, and the plaintiffs duly excepted. This ruling constitutes the basis of the sixth assignment of error. The facts pertaining to the ruling which constitutes the basis of the seventh assignment of error are stated in the opinion. The plaintiffs requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe the...