Prestwood v. McGowin

• Decision Date: 06 July 1906
• Citation: 41 So. 779,148 Ala. 475
• Parties: PRESTWOOD v. MCGOWIN ET AL.
• Court: Alabama Supreme Court

41 So. 779

148 Ala. 475

PRESTWOOD v. MCGOWIN ET AL.

Supreme Court of Alabama

July 6, 1906

Appeal from Circuit Court, Covington County; John P. Hubbard, Judge.

"To be officially reported."

Action by S.W. McGowin and others against J. A. Prestwood and others. From a judgment in favor of plaintiffs, defendant Prestwood appeals. Affirmed.

Powell & Albritton, for appellant.

B. H Lewis, for appellees.

SIMPSON J.

This was an action claiming damages for the breach of a warranty of title in a conveyance of land. There are numerous assignments of error, but the only matters insisted on in the brief of counsel for appellant are as follows:

1. The failure of the court to tax costs against the plaintiff on account of two defendants in favor of whom pleas of coverture were sustained, and another who died during the progress of the case, on account of which the suit was allowed to abate as to his estate. It may be replied to this that there is no assignment of error on this point, nor any evidence that any exception was taken as to the action of the court in that particular, and, besides this, the judgment of the court shows that the two parties in favor of whom pleas of coverture were sustained were adjudged to "go hence and recover of the plaintiff their costs." As to the abatement, sections 1331 and 1332 of the Code of 1896 are enactments for the benefit of the parties who are discharged or their estates, and also for the security of the officers of courts, and not the remaining defendant, who is liable for the entire breach of the contract and its attendant costs. No judgment for costs was taken against the estate of Bates.

2. The remaining proposition by appellant is that, inasmuch as the complaint alleges that several parties "had the title to and were in adverse possession of certain parts of said land it is incumbent on plaintiff to prove both that the parties were in adverse possession and that they had the title to the parcels of land held by them," and he claims that in this case the possession of said parties could not be adverse, because it was not shown that any statement had been filed, in accordance with sections 1331 and 1332 of the Code of 1896. It is true that the allegata and probata must correspond, and it is also true that in some matters statements in the complaint which it was unnecessary to make must nevertheless be proved before the plaintiff can recover as, for instance, where the statement is a part of the description of that which is material, so that the case proved is not substantially the same case as that which is alleged. Gilmer v. Wallace, 75 Ala. 220; Forward v. Marsh, 18 Ala. 645; Wilkinson v. King, 81 Ala. 156, 8 So. 189; Stewart v. Tucker, 106 Ala 319, 17 So. 385; Conrad v. Gray, 109 Ala. 130, 19 So. 398; Dill v. Rather, 30 Ala. 60. Or where the cause of action proved is variant from that alleged, as in Kennedy v. M. & G. R. R., 74 Ala. 430; Ala. G. So. Ry. v. Grabfelder, 83 Ala. 200, 3 So. 432; Ala. G. So. Ry. v. Thomas, 83 Ala. 343, 3 So. 802; Harold v. Jones, 97 Ala. 637, 11 So. 747. On the other hand, where the attachment bond sued on was set out in the declaration as conditioned that "R. C. and C. C. had prayed an attachment at the suit of said R. and C. C.," while the bond produced recited that "J. J. S." prayed the attachment at the suit of "R. and C. C.," the court says: "We do not think that this is a material variance, for these recitals do not form an essential portion of the condition of the bond." And in the same case, although the bond was alleged to have been given "for an ancillary attachment, and the bond proved was for an original attachment, it was held not a material variance, as the bond in each case was the same in substance, and the liability the same." Dickson v. Bachelder, 21 Ala. 699, 704. Also, where the action was for neglecting to treat a hired slave with proper care, the court says: "The consideration and terms of the contract of hiring need not be alleged, and, if alleged, they need not be proved," as the right to recover did not depend upon the terms of the contract, but the gravamen being the manner of treatment of the slave while hired. Moseley v. Wilkinson, 24 Ala. 411. Also, where the bill alleged that "C. F. A." owed the debt, and the proof showed that "A. Bros.," a firm composed of "C. and F. A.," were the debtors, and also where the date of the deed was a year later than alleged, these were not such variances as to affect the right of recovery. Peck v. Ashurst, 108 Ala. 429, 438, 19 So. 781. And this court, also, while deciding that, where a single count contains several distinct, independent averments, each presenting a substantive cause of action, proof of either will authorize a recovery; but where a count contains several averments, "all of which combined...