Ponder v. Cheaves

• Decision Date: 10 August 1894
• Citation: Ponder v. Cheaves, 104 Ala. 307, 16 So. 145 (Ala. 1894)
• Parties: PONDER ET AL. v. CHEAVES ET AL.
• Court: Alabama Supreme Court

16 So. 145

104 Ala. 307

PONDER ET AL. v. CHEAVES ET AL.

Supreme Court of Alabama

August 10, 1894

Appeal from circuit court, Randolph county; L. F. Box, Judge.

Action of ejectment by B. F. Ponder and others against Nancy Cheaves and others. Judgment was rendered for defendants, and plaintiffs appeal. Reversed.

The defendants filed three pleas, the first, the general issue of not guilty; the second, that they and Stephen W. Herren, the ancestor of defendants, under whom they claim title, had been in the open, notorious, adverse and continuous possession of said lands under claim of ownership, for more than 10 years before the institution of this suit; and, third, the statute of limitations of 20 years, under a like possession and claim. On these pleas the plaintiff's took issue, and the case was tried.

The plaintiffs introduced an admission in writing of the defendants, that judgments for between five and six thousand dollars had been rendered by the circuit court of Randolph county, in favor of T. R. Hambrick, D. V. Crider, F. W Buckalew, who were ancestors of plaintiffs, and who, except Ponder, Mills and Slaughter, who owned an interest in said judgments, were the only heirs at law of said Hambrick Crider and Buckalew; that executions were regularly and legally issued on said judgments, and, coming to the hands of the sheriff of said county, were levied on the lands described in the complaint, as the property of the said Stephen W. Herren, who was in the possession of said lands at the time of the levy; that said lands were duly advertised and sold by the sheriff, and were bid off at the sale by T R. Hambrick, one of the execution creditors, under an agreement between him and the other execution creditors; that afterwards, a deed was executed by said sheriff to said Hambrick, Buckalew, Crider, Mills, Slaughter and Ponder; that it described the lands in dispute and the consideration bid and paid for them, which was $85. The deed was delivered to W. H. Smith, to be recorded, and he delivered it to the judge of probate for that purpose, and it had been lost. This admission supplied the place of the original on the trial. It was shown to have been executed in the year 1867. On this evidence and proof of the rental value of the land, the plaintiffs closed. The defendants introduced a number of witnesses, who swore to facts tending to show, that said Stephen W. Herren, their ancestor, was in possession of said lands in 1867, had been in possession of them for a number of years prior to that time, and continued in their possession down to the date of his death, which occurred in the year 1886, and that his wife and children had been in possession of them ever since; that he cultivated a part of said lands had rented parts of them at different times to different persons, exercised acts of ownership over them, and spoke of them to the witnesses as his lands. None of these witnesses testified to any fact, however, tending to show that the plaintiffs knew or had notice that he claimed the lands adversely to them. The plaintiffs in rebuttal, on the other hand, introduced a number of witnesses who testified to facts tending to show, that said Herren, down to the date of his death, or a short time before, recognized the plaintiffs' title to the lands as superior to his. R. S. Heflin testified, that he was a brother-in-law of said Herren, and knew the parties to the suit; that he was present at the sheriff's sale of said lands under executions against said Herren; that in the latter part of the year 1867, after said sale, one Heaton, a son-in-law of said Herren, rented said lands from the purchasers at execution sale for said Herren, and that he and said Heaton farmed together on the lands in the year 1868; that Herren continued to live on the lands, down to the time of his death in 1886; that during the time said Herren lived on the lands, after the sheriff's sale, he talked to witness about the lands, and told him that they belonged to Ponder and others, but that he hoped to pay off the old debts and redeem the lands, and tried to borrow money from witness for that purpose; that about a year before the death of said Herren, he came to witness to get him to go with him to Tallapoosa county to see Ponder, about redeeming the lands; that they went and Herren spoke to Ponder of the lands as belonging to him, and asked Ponder if he would pay the principal of the debt, if he would remit the interest and allow him to redeem, which Ponder agreed to do. There was other evidence by plaintiffs of like tendencies. The plaintiffs also introduced the petition of said Herren filed in the United States court in December, 1868, praying to be adjudged a bankrupt, and, in connection therewith, his schedule of property, in which the lands sued for were mentioned, and in which schedule he stated that said lands therein described had been sold under executions from the United States court and from the circuit court of Randolph county in 1866 or 1867, and were subject to redemption under the laws of Alabama. It was admitted by defendants, that the judgments in favor of the plaintiffs in this suit, rendered by the circuit court of Randolph county against said Herren, under which said lands were sold under execution issued on the same, amounted to between $5,000 and $6,000, and that no payment had ever been made on the same. It was also shown, that the lands sued for were a part of the same lands which were described in said schedule. The defendants offered...