Wade v. Gilmer

• Decision Date: 12 February 1914
• Citation: 186 Ala. 524,64 So. 611
• Court: Alabama Supreme Court
• Parties: WADE v. GILMER.

64 So. 611

186 Ala. 524

WADE v. GILMER.

Supreme Court of Alabama

February 12, 1914

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Ejectment by L.A. Gilmer against M.L. Wade. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Tate &amp Arnold and Blackwell & Agee, all of Anniston, for appellant.

Knox Acker, Dixon & Stere, of Anniston, for appellee.

McCLELLAN J.

A succinct statement of the progress and posture of the pleading in this matter will disclose the narrow issue made for the trial. On August 21, 1911, Gilmer (appellee) filed a complaint in statutory ejectment against Wade (appellant) to recover 40 acres of land therein described. On October 4 1911, Wade filed to the complaint two "pleas." The first appears to have been disclaimer of all of the land sued for except a fraction thereof particularly described in the first "plea." The second "plea" was, in substance, the statute of limitations as to part (described therein) of the land sued for, with disclaimer as to the remainder thereof. On March 19, 1912, defendant filed the following in the cause: "Now comes the defendant and by leave of the court files additional plea as follows: Third that he disclaims possession of the premises sued for, and suggests to the court that the suit arises over a disputed boundary line." On September 14, 1912, following an allowed amendment of the complaint, the defendant withdrew "his pleas 1 and 2." On September 24, 1912, a minute entry recites that defendant, by leave of the court, withdrew "all his pleas except plea of disclaimer last filed"--meaning that filed March 19, 1912. The judgment entry, of September 28, 1912, recites: "Came the parties by attorneys, and issue being joined upon the defendant's third plea filed the 19th day of March, 1912, thereupon came a jury," etc.

It thus appears that, instead of taking judgment upon the complete disclaimer asserted in the first clause of the third plea, as the plaintiff might have done (Torrey v. Forbes, 94 Ala. 135, 10 So. 320), the plaintiff elected, by his joinder in issue on the third plea, to contest the disclaimer. Thereupon, on this feature of the plea--the first stated therein--the issue thus made presented the question of defendant's possession vel non of the land sued for and nothing more. McQueen v. Lampley, 74 Ala. 408, 410; Torrey v. Forbes, supra; Bernstein v. Humes, 60 Ala. 582, 31 Am.Rep. 52. The plea of disclaimer is "an admission of plaintiff's title, with denial of defendant's possession." Authorities supra. Under such a plea no question of title as to lands so disclaimed is litigable. Authorities supra. The necessary effect of a joinder in issue upon a plea of disclaimer is for the pleader to affirm no possession of the lands as to which he disclaims and for the plaintiff to, in effect, affirm the defendant's possession. The only effect of successfully contesting a disclaimer is to impose costs and damages upon the unsuccessful disclaimer. So, on the first branch of the third plea the issue of possession vel non was raised. Code, § 3843.

It is apparent that the pleader's intention was to avail of the statutory provision in Code, § 3843, for the determination of the "true location" of a disputed boundary line. The statute, new in the particular just stated to the Code of 1907, reads as follows: "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 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. The defendant in his disclaimer may suggest to the court that the suit arises over a disputed boundary line, and thereupon the court shall make up an issue and submit to the jury the question of the true location of the line, and shall render judgment accordingly and order the sheriff to establish and mark the true line, found by the jury, and in such case, apportion the costs justly and equitably." It is manifest from the statute that, if the plaintiff does not elect to contest the disclaimer, the...