Turner v. White

• Citation: 12 So. 601,97 Ala. 545
• Parties: TURNER ET AL. v. WHITE ET AL., (TWO CASES.
• Decision Date: 16 December 1892
• Court: Alabama Supreme Court

12 So. 601

97 Ala. 545

TURNER ET AL. v. WHITE ET AL., (TWO CASES.

Supreme Court of Alabama

December 16, 1892

Appeal from circuit court, Mobile county; William E. Clarke, Judge.

Two actions,-one, ejectment by George C. White and others against Freeman C. Turner and others; and the other an action by Marcia E. Turner against George C. White and others to recover taxes paid by Mrs. Turner on the land which was the subject of the controversy in the ejectment suit. There was a judgment for White in the ejectment suit and for Mrs. Turner in the action to recover taxes, allowing her the state and county, but not the municipal, taxes, and from the judgments Freeman C. Turner and Mrs. Turner appeal. Corrected and affirmed.

This is an ejectment suit by appellees, as plaintiffs in the court below, against the appellants, defendants, as tenants in possession, to recover certain lots of land in the city of Mobile. The declaration and notice were filed and the writ issued, February 25, and was served February 27, 1889, On July 12th, these defendants disclaimed possession of the premises, on which disclaimer the plaintiffs took issue, and on the trial this issue was found in favor of plaintiffs judgment rendered against defendants, and a writ of possession ordered. Afterwards, on January 6, 1890, Mrs Marcia H. Turner filed her petition to the court in the cause, stating, among other things, that said lots had been sold on the 20th of November, 1880, for taxes, and purchased by the state, and on May 31, 1884, she redeemed and purchased said lots from the state, and the auditor on that date issued a certificate transferring to her all the interest of the state in and to said lots, which certificate was recorded in the probate office of Mobile on the 4th June, 1884. She averred she went into the immediate possession of the property by herself and her agents, claiming and using it from that date continuously to that time; that the defendants F. C. and John T. Turner had "been using said lots, with the implied consent of petitioner, by stacking lumber thereon, and they have had no other use, occupation, or possession thereof," and that she personally was never on the premises, and never used them. The prayer of the petition was to restrain the clerk from issuing the writ of possession, and to admit her "to come in and be made a party defendant to this suit, and defend her rights and property in and to said lots against the claims of the plaintiffs." Afterwards, on consideration, the court granted the prayer of said petition in the following order "It is considered by the court that the motion be granted, on payment of all costs, excepting the costs of the petition of Marcia H. Turner, and, such costs having been paid to the clerk, the judgment is set aside, and Marcia H Turner, on her petition to be made a party defendant as landlord, is granted, and she is hereby made a defendant to this cause." Afterwards Mrs. Turner moved the court to amend this order so as to show that she was made "a defendant in the cause, instead of said Freeman C. Turner and John T. Turner," but this motion was denied by the court. Then followed numerous and lengthy pleas, and motions to strike them out. Finally, before any action by the court on the pleas and motion to strike out, the parties agreed to try the cause upon an agreed state of facts, which is set out in the record, wherein it was submitted to the court, subject to exception, to determine if said Marcia H. Turner, under all the circumstances, was the sole defendant, or if said F C. and John T. Turner were also parties, agreeing that "the pleadings shall consist of the declaration and notice, disclaimer by John T. Turner and Freeman C. Turner, and general issue and statute of limitations of five years for tax titles by Marcia H. Turner." The court held them all as parties, and tried the cause on the disclaimer as to F. C. and J. T. Turner, and the general issue and statute of limitations of five years as to Mrs. Turner. The agreement for trial contained this clause: "It is agreed that all facts necessary to recover by the plaintiffs are admitted except the sole question (to be determined by the court) whether the admission of Marcia H. Turner, as shown by the papers and record, makes the suit for the recovery of said lands a new one against said Marcia H. Turner, begun after the time contemplated by the statute of limitations of five years, as above pleaded." It was further agreed that two dollars per month since May, 1884, was the fair rental value of the property. Another part of the agreement was: "Should the court determine the issue submitted in favor of the plaintiff, it is agreed that on the next motion day of this court the matter of taxes shall be submitted to the court in the place of a jury, to determine, on the tax receipts and deeds to be submitted by the respective parties, how much, if anything, plaintiff shall pay to defendant for taxes paid." On this statement of facts the court found and rendered a judgment for the plaintiff for the lands described in the complaint, and for $68.70 for the use and occupation thereof. The parties thereafter, on the 12th February, 1891, agreed again in writing that the time for preparing and signing a bill of exceptions should be extended until the adjournment of the court, at its next May term, 1891, for the purpose of obtaining a final judgment on the questions of the taxes to be refunded to Mrs. Marcia H. Turner, as paid by her on the property in controversy, and that all proceedings in the cause, both as to writs of possession and costs, should be stayed until that time. On the 12th May, 1891, the parties in open court consented, and the court accordingly ordered, that the matter of refunding said taxes be docketed separately from the ejectment suit, which the clerk, by the order of the court, did, entering the cause as "Marcia H. Turner v. G. C. White and C. Alexander;" and thereupon the court proceeded, upon an admitted state of facts, set out in the record, to render judgment, upon the petition of the said Marcia H. against said George G. White and Charles Alexander for $153.05 for state and county taxes paid by her, and also for the costs of the proceedings. Afterwards the defendants prepared and tendered a single bill of exceptions covering the proceedings in the ejectment suit, and in the separate proceeding to ascertain the taxes paid by said Marcia H., but the court refused to sign said bill of exceptions as one embracing the facts, pleadings, and the final judgment, both in the ejectment suit and the separate judgment on the motion for the reimbursement of said taxes, and "for the refusal to sign the bill as in one case the defendants excepted." The court, however, did sign separate bills as prepared and presented in each of...