Torrey v. Forbes

• Citation: 94 Ala. 135,10 So. 320
• Parties: TORREY v. FORBES, ET AL.
• Decision Date: 16 December 1891
• Court: Supreme Court of Alabama

10 So. 320

94 Ala. 135

TORREY v. FORBES, ET AL.

Supreme Court of Alabama

December 16, 1891

Appeal from circuit court, Baldwin county; W. E. CLARKE, Judge.

Ejectment by Charles Torrey, as executor of John Bowen, against Elisha Forbes and another. Nonsuit granted. Plaintiff appeals. Reversed.

The plaintiff's testator derived title from Grist, Hughes &amp Co., and, in order to prove the chain of title, he introduced, among other proceedings and deeds, the deed of Annie M. Hughes to Zophar Mills, and also the deed of Isaac W. Hughes to Zophar Mills, and also introduced in evidence the depositions of William J. Clark and Annie M. Hughes taken in North Carolina, who testified that the signatures to the deeds were respectively those of Annie M. Hughes and Isaac W. Hughes and Williams J. Clark, and that Isaac W Hughes and William J. Clark had been dead for some years. The defendant moved to exclude the deed of Isaac W. Hughes- First, because the acknowledgment was defective second, because the said deed had never been recorded; third, there was no witness thereto; fourth, the judge making the certificate was not shown to have been a judge of a court of record. The court sustained the defendant's objection to exclude the said deed, to which the plaintiff duly excepted. The substance of the certificate of said deed is stated in the opinion. The plaintiff then introduced in evidence the deed of Zophar Mills to his testator, John Bowen, and also introduced evidence tending to show that the defendants did not enter upon said lands until the spring of 1882. The defendants, to sustain their contention, introduced a deed of Sallie A. Forbes to James A. Bishop, and also a deed from Sarah A. Grist to Sallie A. Forbes, purporting to convey the lands involved in this controversy; and the defendant testified that he bought the lands described in said deed as lands owned by Sarah A. Grist. The plaintiff thereupon moved to exclude said deed of Sarah A. Grist to Sallie A. Forbes- First, because there was no witness thereto; second, that said deed was void; third, that it was not acknowledged by Benjamin Grist, the husband of the grantor. The court overruled the plaintiff's motion, and admitted the deed in evidence as a color of title, and plaintiff excepted.

Fredk. G. Bromberg, for appellant.

Pillans, Torrey & Hanaw, for appellees.

COLEMAN J.

Plaintiff brought suit in ejectment against James A. Bishop and Elisha Forbes. Both defendants entered a joint plea of not guilty. On the same day, the defendant Forbes filed a disclaimer as to all the lands sued for, except 160 acres. The plea of not guilty and a disclaimer cannot be pleaded together. They are inconsistent with each other. The plea of not guilty is a conclusive admission of possession, and puts in issue the title. A disclaimer is an admission of plaintiff's title, but denies the possession. McQueen v. Lampley, 74 Ala. 408; Bernstein v. Humes, 60 Ala. 582. The plaintiff may, if he elects, take issue upon the plea of disclaimer; but upon such issue the question involved is not one of title. Code, § 2699.^[1] If the plaintiff does not wish to contest the plea of disclaimer, his proper course would be to take judgment for the lands disclaimed as to the party disclaiming for want of plea, but without damages or cost, (74 Ala., supra,) and join issue upon the plea of not guilty as to the balance of the lands. The judgment entry recites as follows: "That during the trial of the cause plaintiff dismissed the suit as to the defendant Bishop, and the defendant Elisha Forbes asked and was granted leave to disclaim as to all the lands except those described in his disclaimer. The defendant Forbes moved to abate the suit upon the ground that the dismissal of the suit as to Bishop operated a discontinuance of the suit, and the court granted the motion; whereupon the plaintiff asked leave to take a nonsuit, with bill of exceptions," etc. We do not think the cause was in a condition to authorize the taking of a nonsuit after, by the order of the court granting the motion, the cause had been discontinued. The statute (section 2737, Code) provides that nonsuits must be taken before the jury retire; and section 2759 of the Code provides when, from the decision of the court on the trial of a cause, it may become necessary for the plaintiff to suffer a nonsuit, the facts, point, or decision may be reserved for the decision of the supreme court by bill of exceptions as in other cases. The rulings of the court upon questions of evidence, or in a charge to the jury, or upon other points, may be such as to render it necessary for the plaintiff to suffer a nonsuit; and he is permitted by statute to do this at any time before the jury retire. The statute contemplates that the nonsuit shall be taken during the trial, not after it is ended by an order discontinuing the entire suit. It is contended that the rule as to discontinuance does not apply in cases of tort. We think it applies in all cases. A legal chasm discontinues a cause, whether it occurs in a criminal or civil action. Ex parte Hall, 47 Ala. 675; Drinkard's Case, 20 Ala. 9.

It is well settled that a discontinuance without sufficient cause shown, as to one of several defendants, who has been served with process, is a discontinuance of the entire action. Kendall v. Lassiter, 68 Ala. 182. The exception obtains where one of the defendants, by plea such as coverture, infancy, the statute of limitations, or the like, can successfully interpose a defense personal to himself; or, where the proof shows that plaintiff has no just cause of action as against such defendant, an amendment by dismissing as to him, or by striking his name out of the complaint, will not operate to discontinue the cause. Jones v. Engelhardt, 78 Ala. 506; Reynolds v. Simpkins, 67 Ala. 380; Mock v. Walker, 42 Ala. 670; Givens v. Robbins, 5 Ala. 676. The fact that a plaintiff may sue jointly several tenants, and recover of each the portion of land held and occupied by him separately, or that tenants in possession of distinct parts may protect themselves from a joint judgment for damages, as held in Rowland v. Ladiga, 21 Ala. 33, and as provided for in the Code, § 2710, ^[1] does not prevent the rule in regard to discontinuances from applying to suits in ejectment. There may be an unlawful joint withholding of the land by several tenants. The same principle applies as in suits to recover damages for a joint trespass to property. Slade v. Street, 77 Ala. 576.

A discontinuance may be waived by the defendant. The rule recognized by the authorities is that, if an order or judgment is entered which operates a chasm in the proceedings, the advantage must be claimed by the party who desires to avail himself of it at the earliest period; and any subsequent pleading or prosecution of the defense on the part of the defendant will be held a waiver by him of the irregularity. Walker v. Cuthbert, 10 Ala. 219; Hair v. Moody, 9 Ala. 399; Shorter v Urquhart, 28 Ala. 365. According to the judgment entry, the defendant Forbes filed his disclaimer after the suit was dismissed as to Bishop, and the bill of exceptions shows that, after the dismissal of the suit as to Bishop, both parties introduced and closed their evidence; and not until after the opening argument by plaintiff, and the reply thereto by the defendant, was concluded, was the motion made that the cause be discontinued as to the defendant Forbes. We think the motion came too late. The order should have been asked for immediately upon the dismissal of the...