Shubert v. Winston

• Decision Date: 25 May 1892
• Citation: 95 Ala. 514,11 So. 200
• Parties: SHUBERT v. WINSTON.
• Court: Alabama Supreme Court

11 So. 200

95 Ala. 514

SHUBERT v. WINSTON.

Supreme Court of Alabama

May 25, 1892

Appeal from circuit court, Marshall county; JOHN B. TALLY, Judge.

This was a statutory action of ejectment brought by John G Winston, Jr., to recover the possession of certain lands. The suit was originally brought against A. Shubert, but, by an order of the court, the defendant James W. Hodges was allowed to come in and defend the action as the landlord of Shubert. The defendant Hodges pleaded "not guilty," and issue was joined on this plea. The plaintiff based his right to recovery to the lands in controversy, upon a sheriff's deed executed to him on November 5, 1885. The plaintiff introduced in evidence the records of the court showing that on February 23, 1885, he recovered a judgment in the circuit court of Marshall county against one John G. Coleman, who had been the owner of the land in controversy; that on September 8, 1885, execution was issued on this judgment, and levied upon the said lands; and, after being duly sold under said execution, the plaintiff became the purchaser of the said land, and received the deed from the sheriff, above referred to. The testimony further tended to show that the said lands were composed of two tracts, about three fourths of a mile apart,-one of 40 acres, upon which the said Coleman resided and one of 55 acres, which Coleman cultivated in connection with the 40-acre tract, and from which he obtained a support for his family. The defendant's testimony tended to show that he purchased the lands in controversy from the said James G. Coleman on February 20, 1885; that he paid a fair and reasonable price therefor, and received a deed signed by James G. Coleman and R. Julia Coleman, his wife; and that said deed was filed and recorded in the probate office September 1, 1885. Upon the deed books being introduced in evidence, it was shown that, as first acknowledged before the justice of the peace, the acknowledgment of James G. Coleman and R. Julia Coleman was taken together, and only the joint certificate of her and her husband as is made in the ordinary form of conveyances was made by the magistrate; that, after the said deed had been delivered to Hodges, and had been filed in the probate office of the said county, the magistrate before whom Coleman and his wife had made their acknowledgment added a separate acknowledgment to the deed showing that the wife of said James G. Coleman had been examined separately and apart from her husband, and acknowledged that she signed the deed voluntarily and without fear, constraint, etc., on the part of the husband, as is required by the statute in the conveyance of homesteads. The defendant then testified that he had the deed recorded a second time after the separate acknowledgment of the wife had been certified to as above stated. It was also in evidence that, after the making of the deed of James G. Coleman to the defendant Hodges, the said Coleman removed from the land, and went to Texas, where he was at the time the present suit was brought. There was judgment for plaintiff. Defendants appeal. Affirmed.

J E. Brown, for appellants.

O. D. Street, for appellee.

WALKER J.

The two parcels of land involved in this suit are not contiguous. The house in which James G. Coleman, the judgment debtor, lived with his family, was on the 40-acre tract. In connection with this tract he used the other tract, containing 55 acres, cultivating it every year, and getting from it a support for his family. The aggregate value of the two tracts was less than $2,000....