Smith v. Bachus, 7 Div. 708

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 195 Ala. 8,70 So. 261
• Docket Number: 7 Div. 708
• Decision Date: 11 November 1915
• Parties: SMITH v. BACHUS et al.

70 So. 261

195 Ala. 8

SMITH
v.
BACHUS et al.

7 Div. 708

Supreme Court of Alabama

November 11, 1915

Appeal from Circuit Court, Clay County; Hugh D. Merrill, Judge.

Action by H.T. Bachus and others, pro ami, against Javan J. Smith. Judgment for plaintiffs, and defendant appeals. Reversed and remanded. [70 So. 263]

Lackey & Rowland and O.B. Cornelius, all of Ashland, for appellant.

Blackwell & Agee, of Anniston, for appellees.

THOMAS, J.

This is an action under the statute for the recovery of a small strip of land, brought by the children of Martha A. Harris, deceased, against Javan J. Smith, the appellant. In the first count the plaintiffs sued for the recovery of the S.W. 1/4 of the S.W. 1/4 of section 10, township 18, range 9, in Clay county, Ala.

By special pleas defendant disclaimed possession "of all the 40 sued for in said count of the complaint lying east of and in an easterly direction from a line running with an old fence or hedgerow, running in a northerly and southerly direction along the western part of said 40." and also pleaded not guilty "to all of said 40 lying west of an old hedge or fence row running in a northerly and southerly direction along the western part of said 40?" The real contention of the plaintiffs was that the land sued for was in section 10, while that of the defendant was that it was in section 9.

In each of the recent cases of Wade v. Gilmer, 186 Ala. 524, 64 So. 611, and Oliver v. Oliver, 187 Ala. 340, 65 So. 373, the verdict was declared not to respond to the issue by designating the true boundary line by the name of the surveyor.

The verdict in the case before us was different, in that it found for the plaintiffs "on defendant's plea of disclaimer and of the general issue, and for all of the land sued for, to wit, S.W. 1/4 of S.W. 1/4 of section 10, township 18, range 9, Clay county, Ala.," and further found that "the Caldwell and Curry survey is the true divisional line between the plaintiffs and the defendant." Under the issue submitted to the jury, the judgment predicated on this verdict, that the plaintiffs recover of the defendant the S.W. 1/4 of the S.W. 1/4 of section 10, township 18, range 9, was not erroneous. But that part of the judgment declaring the Caldwell and Curry line between the lands of plaintiffs and those of defendant to be the true line was indefinite, and afforded no sufficient guide to the sheriff in the premises. Foreman v. Redman (Ky.) 5 S.W. 556. A suit in chancery would lie to establish what this disputed boundary line between the plaintiffs and defendant was. Code 1907,§ 3052; 6 Pom.Eq.Jur. (3d Ed.) § 694 et seq.

The objection to the verdict which we have pointed out is not made by appellant. If such objection had been made, the answer would be that the verdict and judgment under the plea of not guilty was for area specifically described ( Martin v. Howard, 68 So. 982; Bradford v. Sneed et al., 171 Ala. 113, 56 So. 532), and was not a verdict on a suggestion to the court of a disputed line under section 3843 of the Code. While not required by the statute, the "suggestion to the court" should point out the true boundary line between the plaintiff and the defendant, thus aiding the court in expeditiously [70 So. 264] making up the issue to be submitted to the jury--"the question of the true location of the line."

There was no misjoinder of causes of action. The several tracts of land sued for were specifically described, and might have been embraced in one count. The fact that they were claimed in separate counts could not result in a misjoinder. The demurrer to the complaint was properly overruled. Code, 1907, § 5367; Brown v. Loeb, 177 Ala. 106, 58 So. 330. At the trial the second and third counts of the complaint were withdrawn.

Plaintiffs offered in evidence a deed from D.C. and R.A. Harris, of date April 10, 1894, to Martha Ann Harris, to the land sued for in the first count, to the introduction of which deed the defendant objected, assigning as specific grounds that it was "incompetent evidence," that "it was not shown that D.C. and R.A. Harris were in the possession of the lands conveyed," and that the instrument was "indefinite as to the title" conveyed. When specific objection is made, all other objections are waived. Rule 33, Circuit Court (page 1527 of the Code of 1907); B.R., L. & P. Co. v. Saxon, 179 Ala. 136, 59 So. 584; So. Ry. Co. v. Gullatt, 158 Ala. 502, 48 So. 472.

The granting clause of this deed was to "Martha Ann Harris during her natural life for her sole and separate use," and the habendum clause was "to have and to hold unto the said Martha Ann Harris during her natural life for her sole and separate use, and after death to go by way of remainder over to her heirs." The estate thus created is to be determined, not alone by the words used, but by the situation and circumstances of the parties, the context of the instrument, and the fact that the instrument was or was not written by a person acquainted with "the use of legal technical words." Findley et al. v. Hill et al., 133 Ala. 229, 32 So. 497; Castleberry v. Stringer, 176 Ala. 250, 57 So. 849. At the time the conveyance was executed to her by her parents Martha Ann Harris was childless and unmarried. Thereafter she married Mr. H.T. Bachus, and left at her death Hoyt B. Bachus, Cameron W. Bachus, and Hiram H. Bachus, the plaintiffs in the court below, suing by H.T. Bachus, their next friend and father.

A consideration of the deed convinces us that it was drawn by one who understood the use of the words "during her natural life for her sole and separate use, and after her death to go by way of remainder over to her heirs," and that the grantor intended to create a life estate in Martha Ann Harris, with remainder to her heirs at law at the date of her death.

The case of Dake et al. v. Sewell et al., 145 Ala. 581, 39 So. 819, relied on by appellants, has no application here. It was there held that the husband took a life estate, by curtesy, in the real estate inherited by his deceased wife from her father's estate, with remainder in the children. The rule in Shelley's Case, to favor the transmission of estates by descent and to prohibit transmission in lines of succession by means of deeds or wills, instead of the law of inheritance, was abolished by section 1304 of the Code of 1852 (January 17, 1853), and this section was carried into the subsequent Codes. As section 3403 of the Code of 1907 it is as follows:

"Where a remainder created by a deed or will is limited to the heirs, issue, or heirs of the body of a person to whom a life estate in the same property is given, the persons who on the termination of the life estate, are the heirs, issue or heirs of the body of such tenant for life, are entitled to take as purchasers by virtue of the remainder so limited to them."

In Carter et al. v. Couch, 157 Ala. 470, 47 So. 1006, 20 L.R.A. (N.S.) 858, the words of the conveyance there construed created a "fee-tail estate" that was raised by statute to a fee absolute. Section 3397, Code. The husband was in such case entitled to curtesy in the wife's lands, with remainder to her heirs at law.

In the instant case no fee-tail estate was created by the deed sought to be introduced. The remainderman did not take as heir or by descent, but under the conveyance as a purchaser. Duffy v. Jarvis (C.C.) 84 F. 731; McQueen v. Logan, 80 Ala. 304; Wilson v. Alston, 122 Ala. 630, 25 So. 225. The estate created by the deed falls within the express terms of the statute. The husband of Martha Ann did not come within the remainder created by the deed "to her heirs," but the plaintiffs were such remaindermen. No life estate by curtesy existed in the husband. Findley et al. v. Hill et al., 133 Ala. 229, 32 So. 497; De Bardelaben v. Dickson, 166 Ala. 59, 51 So. 986; Castleberry v. Stringer, 176 Ala. 250, 57 So. 849. The termination of the life estate being shown, the remaindermen, to maintain ejectment, must show title by introduction of the deed in question. Dake et al. v. Sewell...