Ray v. Farrow

• Decision Date: 12 June 1924
• Docket Number: 5 Div. 888.
• Citation: 211 Ala. 445,100 So. 868
• Parties: RAY ET AL. v. FARROW.
• Court: Alabama Supreme Court

100 So. 868

211 Ala. 445

RAY ET AL. v. FARROW.

5 Div. 888.

Supreme Court of Alabama

June 12, 1924

Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.

Action in ejectment by A. J. Ray and S. Y. Ray against L. C. Farrow. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

In an action in ejectment by remaindermen against one holding by title from plaintiffs' mother, who had dower interest evidence as to who went into possession after the mother tended to explain character of defendant's title and possession before and to the time of the death of the mother and was relevant.

The suit is to recover the N.W. 1/4 of the S.W. 1/4 of section 15; 30 acres off the west side of S.W. 1/4 of S.E. 1/4 ofsection 16; and W. 1/2 of E. 1/2 of N.W. 1/4 of S.E. 1/4 of section 16-all in township 22, range 22, Tallapoosa county.

It was shown that the plaintiffs are the only heirs at law of one Ransom G. Ray, who was last heard of when he went away to the Civil War, and that he left a widow, who died in 1920. The plaintiffs claim title to the lands sued for as the heirs of said Ransom G. Ray, as remaindermen after the life estate of their mother to whom dower was allotted. Plaintiffs offered as witnesses one Stanford and one Abner Vickers. The testimony of Vickers showed that about the year 1856 Ransom G. Ray was in the possession of a large tract of land in Tallapoosa county, and that he farmed it, grew crops, cut timber for the purpose of building fences, and that witness had heard him refer to it as his land. Witness stated that the land he was talking about was the land that was set apart to the widow as a dower; that he did not know the land by numbers, but that he was with the commissioners and carried the chain for them when they surveyed and set off the land and that the widow and children remained in possession of the lands six or seven years after that time. Plaintiffs announced that they proposed to offer, in connection with the testimony of this witness, the probate proceedings setting apart the widow's dower and the report of the commissioners with whom witness went out to survey said lands, so as to identify the same. The plaintiffs further offered certified copy of deed from the state of Alabama to James E. Cosby, recorded in the office of the secretary of state, conveying S. 1/2 of section 15, township 22, range 22 it appearing therefrom that the deed was executed in pursuance of an act authorizing the sale of school lands approved January 15, 1828. Plaintiffs further offered tract book entries of Tallapoosa county and certified copy of the tract book entry in the office of the secretary of state, showing title to the lands in section 16 out of the state. Plaintiffs offered successively the following papers in the probate court of Tallapoosa county: The petition of Mary Jennings for dower in the lands of her former husband, Ransom G. Ray; the decree of the court fixing the date for the hearing of the application; the decree of the court allowing dower; the writ of dower with the return of the sheriff thereon; the report of the commissioners assigning dower, and the decree of the court affirming dower.

Plaintiffs stated to the court that the report was also offered for the purpose of identifying the lands. The defendant objected to each of said papers as they were offered, assigning as grounds therefor to each the general grounds of immateriality and illegality, and that it did not show the petitioner had any right of dower; that the petition did not describe the lands sued for or any part; that it was not shown that the deceased was the owner of the land or had any equity in it. It was agreed that the papers being offered were the papers of record in the probate court of Tallapoosa county. As each paper was offered and objected to the court sustained the objection, and the plaintiffs excepted to each of said rulings.

Plaintiffs offered in evidence record of deed from James Boulware and wife to Ransom G. Ray, dated February 4, 1861, conveying the west quarter of south half of section 15, township 22, range 22, Tallapoosa county; said deed being recorded in the office of the judge of probate of said county. The defendant objected on general grounds and on the ground that it was not shown that the grantors ever owned the land or were in possession of it, because the evidence showed that the title was in another party, and that the deed was offered without accounting for the original.

One of the plaintiffs, A. J. Ray, as a witness, then testified that he was a son of Ransom G. Ray, that there were two children, himself and his brother, the other plaintiff in the case; that he was 63 years old, and that, when Jim Berry was appointed administrator of his father's estate, he came to the house and asked for the papers, and his mother told him that the papers were in the trunk; that he went to the trunk and got some of the papers, but that he could not say whether he got the land papers or not; that he (witness) never had possession of his father's deeds to lands, and never saw or heard of the papers after he grew up; that they were not at their home that he ever knew or heard about; that he lived with his mother until he was 27 years old; and that he had never had any papers and that she did not. The other plaintiff was not present at the trial. Plaintiffs again offered the record of said deed, but the court refused to admit the same in evidence.

Plaintiffs next offered in evidence record of a deed from James E. Cosby and wife to James Boulware, conveying S. 1/2 of section 15, township 22, range 22, and again offered in evidence, separately and severally, all the papers theretofore offered in evidence and to which objections had been sustained, but the court refused to admit the same in evidence.

A. J. Ray, one of the plaintiffs, further testified that he was about 7 years old when he first knew the lands said to have belonged to his father; that he was born on them. He testified that he, his mother, and brother lived there about 11 years, and there were about 240 acres in the tract where his mother lived. Witness was asked the question: "This 240 acres of land that was set apart as your mother's dower, how was it used, after the time you were old enough to remember about the land?" The defendant objected to the question, and plaintiffs stated that they expected to show by the witness that for 6 years prior to 1871 he knew the 240 acres known as his mother's land; that they lived on it, cultivated it, cut wood from it, exercised acts of ownership of it, and that his mother claimed it as the land set apart as dower to her. The court refused to allow the witness to answer the question. Plaintiffs stated to the court that they expected the testimony of the witness to show that his mother mortgaged the property to one Craddock, that the mortgage was foreclosed; and that Craddock went into possession under the foreclosure. The court sustained defendant's objection to this testimony.

The plaintiffs offered in evidence the record of the mortgage from Craddock and wife to American Freehold Land & Mortgage Company conveying part of the lands in question, stating to the court that they proposed to show in connection with this record that Craddock, after going into possession of said lands, mortgaged the same, and that the mortgage company foreclosed and took possession of the property. Defendant's objection thereto was sustained.

The plaintiffs next offered the record of a deed from the mortgage company to Joe Davis, conveying a portion of the lands sued for, stating to the court that they proposed to show that Joe Davis went into possession of these lands under his purchase. Defendant's objection was sustained.

Plaintiffs then offered in evidence record of deed from Davis and wife to defendant, conveying a portion of the lands sued for. Defendant's objection thereto was sustained.

The plaintiffs also offered to prove by the witness A. J. Ray what was a reasonable rental value of the property sued for, but, on objection being made by defendant, the court refused to allow such proof to be made.

Witness Stanford, being recalled, testified that he knew Ransom G. Ray just prior to the time he went away to the army, and knew the lands said to have been set apart to the widow as a dower. He stated that he knew that this land was in the possession of the widow, claiming it as her dower after it was said to have been set apart; that after her husband went away, they farmed on it, kept the plantation up by fencing it, using the timber as they saw fit, and that he lived in about two miles of it. He stated that it was his recollection that they remained there 3 to 5 years after the allotment was said to have been made. Plaintiffs asked the following question: "Who went into possession after Mrs. Ray?" The defendant objected, and the court sustained the objection.

The plaintiffs requested the affirmative charge, first as to all the lands sued for, and again as to the N.W. 1/4 of S.W. 1/4 of section 15, township 22, range 22, but each of said charges was refused. The court gave, at the request of the defendant, the affirmative charge with hypothesis, and judgment was rendered in favor of defendant.

Holley & Milner, of Wetumpka, for appellants.

Jas. W. Strother, of Dadeville, for appellee.

THOMAS J.

The action is under the statute, and is in the nature of ejectment. The general affirmative charge, with hypothesis, was given at defendant's request, in writing.

It is contended that the husband of the doweress and father of plaintiffs, Ransom G. Ray, had the possession of the lands sued for under claim of ownership from 1857 to the time of his death during the Civil War; that he went to the war and ...