Robbins v. Gilligan

• Decision Date: 27 February 1889
• Citation: 5 So. 568,86 Ala. 254
• Parties: ROBBINS v. GILLIGAN.
• Court: Alabama Supreme Court

5 So. 568

86 Ala. 254

ROBBINS v. GILLIGAN.

Supreme Court of Alabama

February 27, 1889

Appeal from circuit court, Mobile county; W. E. CLARK, Judge.

Action in the nature of ejectment, brought by Martin Gilligan against Martin C. Robbins. Verdict and judgment for plaintiff, and defendant appeals.

Richard P. Deshon, for appellant.

Pillans, Torrey & Hanaw, for appellee.

STONE C.J.

The present suit is a statutory real action for the recovery of a lot of land situated in the western part of the city of Mobile. The case was tried on the issues of not guilty and 10 years' statute of limitations. Each party served on his adversary a written notice, requiring an abstract of the title on which they severally relied. The suit was instituted by Gilligan in November, 1886. The plaintiff, Gilligan, made title as follows: Deed from one George Mason and wife to him dated in November, 1863, on a recited valuable consideration possession taken under it, and continued until 1869, when the plaintiff and his father's family, of which he was an infant member, were turned out of possession, and ever afterwards remained out of possession. The manner of eviction was not shown, but it was not claimed that it was under legal process. No effort was made to prove title in George Mason, nor was any anterior possession shown in Mason, or in any one else under whom he asserted claim. The deed of Mason and wife was the origin of plaintiff's title, so far as the record informs us. In answer to plaintiff's demand on defendant for "an abstract of the title or titles on which he [would] rely for defense," (Code of 1886, § 2697,) defendant had furnished the following: "(1) Espejo grant. (2) Partition. (3) Deed dated 9th February, 1832, from A. Espejo to Francis Girard. (4) Deed dated 2d December, 1853, from heirs of Girard to R. D. Hopkins. Defendant went into possession of the land in controversy as the tenant of R. D. Hopkins, and so continued in possession up to this suit. He defends under Hopkins' title."

After plaintiff had proven his case as stated above, and after defendant had read in evidence the deed from Girard's heirs to R. D. Hopkins, noted in the abstract supra, he (defendant) offered in evidence two deeds, the purport of which was to show the source from which Mason derived the title afterwards conveyed by him to Gilligan. The first of these deeds was dated in March, 1863, and was executed by J Little Smith, styling himself, "Receiver for the receiver district No. 1 in the Southern division of the judicial district of Alabama." This deed conveyed the lot in controversy to Horace Buckley, on a recited valuable consideration. It shows on its face that it was not made by Smith as an individual, but as an officer of the Confederate States government. It recites that the sale and conveyance were made "in pursuance of a decree of sequestration rendered, and an order for the sale of said lands made by the honorable the district court of said Confederate States for the Southern division of the district of Alabama, at the December term, A.D. eighteen hundred and sixty-two, of said court, in the case entitled 'The Confederate States of America v. the Property of R. D. Hopkins,' an alien enemy." The...