Stephens v. Moore

• Decision Date: 16 June 1897
• Citation: 116 Ala. 397,22 So. 542
• Parties: STEPHENS v. MOORE.
• Court: Alabama Supreme Court

22 So. 542

116 Ala. 397

STEPHENS v. MOORE.

Supreme Court of Alabama

June 16, 1897

Appeal from circuit court, Marshall county; J. A. Bilboo, Judge.

Statutory ejectment by Nellie Moore against Henry Stephens to recover 40 acres of land. From a judgment in favor of plaintiff defendant appeals. Reversed.

Both the plaintiff and the defendant claimed to have derived title to the property in controversy from the same source. The facts showing the claims of the respective parties are sufficiently stated in the opinion.

Among the charges requested by the defendant, and to the refusal to give each of which the defendant separately excepted, was the following: "The court charges the jury that if they believe the evidence they will find for the defendant." There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error, among the other rulings of the trial court to which exceptions were reserved the refusal of the court to give the general affirmative charge requested by him.

O. D Street, for appellant.

Lusk &amp Bell, for appellee.

HARALSON J.

It is undisputed, that no patent to the land in suit was issued by the government of the United States until May 4, 1885, when one issued to S. P. Richardson for the entire section of which the quarter in this suit is a part; that prior to that time, in 1870, Richardson had taken steps to enter the quarter section, and shortly thereafter, he either made a verbal gift of the 40 acres sued for to the plaintiff, who was his mother, or he promised her he would give it to her at some time in the future, which was not fixed, or else he gave her the use and occupation of it so long as he might own the tract, and as to what he did in this respect, the evidence was conflicting. There was no writing between them. It is also shown, that the land was uncleared, until some time in 1884, when about 20 acres of it were cleared up and a house erected on it by Madison Moore, the husband of appellee; that a fence was built, which included the house and the cleared land, and about 16 other acres of uncleared land; that the inclosure took in a part of another 40 acres of the same quarter section, and on which said S. P. Richardson had built a house and resided; that said Madison Moore, in 1884, made a crop on the land he cleared that year, and a few days before Christmas, 1885, he and the plaintiff moved into said house and resided there, together, until March 1, 1895, when defendant, Stephens, went into possession. It is stated in the bill of exceptions, that there was no evidence that plaintiff exercised any acts of ownership over any part of the 40 acres, except that inclosed within said fence. It further appears, that on the 25th September, 1893, Richardson sold, and by proper deed conveyed to defendant the whole of said quarter section, including the lands sued for, and was put in possession of the house and premises on said land, where Richardson had theretofore resided, and defendant has continued since to reside there. The defendant's evidence tended to show, that after his purchase of the land, plaintiff and her husband attorned to him, and her husband, with the approval of plaintiff, rented the land from defendant, for the year 1894, at the agreed price of $15. The evidence on the part of plaintiff was in conflict with this...