Tillison v. Ewing
| Decision Date | 24 November 1890 |
| Citation | 8 So. 404,91 Ala. 467 |
| Parties | TILLISON ET AL. v. EWING. |
| Court | Alabama Supreme Court |
Appeal from circuit court Etowah county; JOHN B. TALLY, Judge.
This was a statutory real action in the nature of ejectment brought by the appellants against the appellee, and sought to recover possession of a certain tract of land specifically described in the complaint. On the facts, which are sufficiently set forth in the opinion, the court, at the defendant's request, charged the jury that, "if the jury believe the evidence, they will find for the defendant," to which the plaintiffs duly excepted.
Walden & Son, for appellants.
The uncontroverted facts-defendant's purchase of the lands sued for in March, 1863, from Thomas Hollingsworth, who was then in possession, receiving a conveyance with convenants of warranty, and his open, notorious, and continuous possession ever since, claiming the land as his own, in independent right, under color of title, for a period of more than 20 years before the commencement of the suit-fully justified the affirmative charge in defendant's favor, unless there is evidence reasonably tending to bring the case within the exception provided by section 2630 of the Code, which, in actions seeking relief on the ground of fraud, allows the aggrieved party one year after the discovery of the facts constituting the fraud within which to prosecute his suit. It appears from the evidence that plaintiffs were not informed of the issuance of a patent to the lands until March, 1887 about six months before the commencement of the suit. The patent was issued June 1, 1845, to William S. Tillison, one of the plaintiffs, and his brother Frank M. Tillison, who died December 29, 1845, the plaintiffs deriving title to his interest as his heirs. The fact constituting the fraud is alleged to consist in the fraudulent concealment of the patent by Hollingsworth, of which it is claimed defendant had knowledge, and in which he participated or connived. Section 2630 being a statutory affirmation and application to legal remedies of the rule which previously prevailed in equity where fraud had been concealed by a party against whom a cause of action existed, with the mere modification that the suit shall be prosecuted within a specified and limited time after discovery of the facts constituting the fraud, a proper construction of the statute requires that the character of the fraud sufficient in such cases shall be determined on the same principles applicable and established under the rule in equity. Accordingly, in Underhill v. Insurance Co., 67 Ala. 45, it is said: "Ignorance of right, there being no more than mere passiveness, mere silence, on the part of his adversary, cannot be...
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Belcher v. Birmingham Trust National Bank
...11 So.2d 854; Hudson v. Moore, 1940, 239 Ala. 130, 194 So. 147." In the cited Fletcher case the court said: "As was said in Tillison v. Ewing, 91 Ala. 467, 8 So. 404: `The ignorance must be superinduced by the fraud of defendant. In the absence of a fiduciary relation between the parties, i......
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Fletcher v. First Nat. Bank of Opelika
... ... between appellant and his father and guardian and the lack of ... knowledge is sufficient. As was said in Tillison v ... Ewing, 91 Ala. 467, 8 So. 404: "The ignorance must ... be superinduced by the fraud of defendant. In the absence of ... a fiduciary ... ...
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Peters Mineral Land Co. v. Hooper
...in this case to defeat the operation of the statute. The following language from the leading case on this question ( Tillison v. Ewing, 91 Ala. 467, 8 So. 404) conclusive: "It appears from the evidence that plaintiffs were not informed of the issuance of a patent to the lands until March, 1......
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Hudson v. Moore
...Peters Mineral Land Co. v. Hooper et al., 208 Ala. 324, 94 So. 606; Kelly et al. v. Shropshire, 199 Ala. 602, 75 So. 291; Tillison v. Ewing, 91 Ala. 467, 8 So. 404. point raised is that the cause of action was concealed by the wrongful act itself, enclosing a foreign substance in the body t......