Smith v. Eudy

• Citation: 216 Ala. 113,112 So. 640
• Decision Date: 21 April 1927
• Docket Number: 6 Div. 743
• Parties: SMITH v. EUDY et al.
• Court: Supreme Court of Alabama

112 So. 640

216 Ala. 113

SMITH v. EUDY et al.

6 Div. 743

Supreme Court of Alabama

April 21, 1927

Appeal from Circuit Court, Blount County; O.A. Steele, Judge.

Action in nature of ejectment by R.F. Smith against Dave Eudy and others. From a judgment for defendants, plaintiff appeals. Affirmed.

J.T Johnson, of Oneonta, for appellant.

Ward Nash & Fendley, of Oneonta, for appellees.

This case was submitted under Supreme Court rule 46, and the opinion of the court was prepared by Mr. Justice BROWN.

This is a statutory action in the nature of an action of ejectment commenced by the appellant against the appellees on the 21st day of May, 1925. Both parties claim under Levi W. Hipp as the common source of their respective titles, and the controversy arises over the location of the boundary line between their respective tracts.

The complaint consists of two counts. Under the first count the plaintiff seeks to recover an 80-acre tract lying south of a line indicated by the following italicized description of the northern boundary line of his tract:

"Beginning at a rock corner near the center of the Huntsville and Blountsville public road, in the bed of the branch at or near where the Brooksville and Holly Pond road crosses said Huntsville and Blountsville road and running south 51 3/4 rods along said Huntsville and Blountsville road for a beginning point; thence in a northwestern direction to a rock corner in the center of the gateway of the wagon road running from the residence of Levi W. Hipp to his farm thence northwest to a rock on the west side of the public road running by the residence of Levi W. Hipp; thence on in the same direction to the north and south line on the west side of the northeast quarter of the northeast quarter of section fifteen, township ten, range one east," in Blount county, Ala.

Under the second count the plaintiff seeks to recover the following described tract:

"Beginning at a rock corner near the center of the Huntsville and Blountsville public road in the bed of the branch at or near where the Brooksville and Holly Pond road crosses the Huntsville and Blountsville public road and runs south 51 3/4 rods along said Huntsville and Blountsville public road to a corner for the beginning point; thence in a northwestern direction, north 64 degrees west, to a rock corner in the center of a gateway of the old wagon road running from the residence of Levi W. Hipp to his farm; thence N.W. to a rock corner on the west side of the public road running by the residence of the said Levi W. Hipp; thence in the same direction to the north and south line on the west side of the N.E. 1/4 of the N.E. 1/4 of sec. 15, township 10, range 1 east, at a point 2 chains south of the N.W. corner of the N.E. 1/4 of the N.E. 1/4 of sec. 15, township 10, range 1 east; thence running south along said quarter section line 6 1/2 chains to a corner; thence in a southeastern direction to the Blountsville and Huntsville public road at a point 2.28 chains south of the beginning point; thence north to said beginning point, in Blount county, Ala."

The above italicized is the line asserted by the plaintiff to be the true northern boundary of his tract.

To this complaint defendants filed a plea disclaiming title to all the lands sought to be recovered lying south of the line described in said plea, and pleaded not guilty as to all lands lying north of said line, which is thus stated:

"Beginning at a point where the road comes into the Huntsville and Blountsville road from the west about 62 rods south from a rock corner near the center of the Huntsville and Blountsville road in the bed of the branch at or near where the Brooksville and Holly Pond road crosses said Huntsville and Blountsville road; thence in a northwest direction with the old fence row to the western side of said lands sued for."

The plaintiff, by demurrer filed to this plea, asserts that it is bad: (1) Because it fails to describe the line with reasonable certainty, and (2) because the disclaimer is joined in one and the same plea with not guilty.

The rule still prevails in actions of ejectment, and the statutory action in the nature thereof, that a plea of not guilty and a disclaimer are incompatible defenses, and may not be pleaded by the same defendant as to the same lands. McQueen v. Lampley, 74 Ala. 408; Doe ex dem. Rowe v. Goetchius, 180 Ala. 381, 61 So. 330; Bailey v. Selden,

124 Ala. 403, 26 So. 909.

But under the statute (Code of 1923, § 7457), which provides "the defendant may, in an action of ejectment, or in an action in the nature of ejectment, disclaim possession of the premises sued for, in whole or in part, and upon such disclaimer, the plaintiff may take judgment or may take issue; and if the issue be found for him he is entitled to judgment as if the defendant had, in an action of ejectment, entered into the consent rule, confessing possession as well as lease, entry and ouster, or, in an action in the nature of an action of ejectment, had pleaded 'not guilty,' admitting possession," it is permissible for the defendant to disclaim as to part of the lands sued for and plead not guilty as to the others in one and the same plea.

We are of the opinion that the plea describes with requisite certainty the line between the lands, the possession of which is disclaimed, and the lands to which the defendants assert title under the plea, and therefore that the demurrer was not well taken.

In such case it is the right of the plaintiff to confess the disclaimer and take judgment as to the land, the possession of which is disclaimed, without damages and costs, or he may take issue on the whole plea, as he did in the instant case.

By taking issue on the plea, the plaintiff assumed the burden of showing that the defendants, at the time of filing the suit, were in possession of the land covered by the disclaimer, and that he (plaintiff) had the legal title, and was entitled to the immediate possession, of the other lands sued for. Wade v. Gilmer, 186 Ala. 524, 64 So. 611; Bailey v. Selden, supra.

The beginning point of the boundary line between these coterminous owners, according to the plaintiff's pleadings, is a point on the Huntsville and Blountsville road, 51 3/4 rods south of a rock located in the bed of a branch crossed by that road, and near where the Brooksville and Holly Pond road intersects and crosses the first-named road, thence running 64 degrees west of north to certain designated monuments, and thence northwest by certain other designated monuments, to the west boundary line of the land in suit; while the beginning point of the boundary line according to defendants' pleadings, is located on the Huntsville and Blountsville road 62 rods south of the rock in the bed of said branch, thence running with an old fence row in a northwesterly direction to...