Wagnon v. Fairbanks

• Decision Date: 31 January 1895
• Citation: 17 So. 20,105 Ala. 527
• Parties: WAGNON v. FAIRBANKS.
• Court: Alabama Supreme Court

17 So. 20

105 Ala. 527

WAGNON v. FAIRBANKS.

Supreme Court of Alabama

January 31, 1895

Appeal from Gadsden city court; John H. Disque, Judge.

Action of ejectment by Florence Fairbanks against M. H. Wagnon. From a judgment for plaintiff, defendant appeals. Affirmed.

This was a statutory action of ejectment, commenced March 17 1893, to recover the possession of the S. 1/2 of the N.W 1/4, and the N.E. 1/4 of the N.W. 1/4, and the N.W. 1/4 of the N.E. 1/4, of section 20, township 11, range 8 E Defendant pleaded the general issue, and statute of limitations, and filed a disclaimer as to a portion of the land. Plaintiff introduced in evidence a mortgage, executed by Marvel C. Brown and wife to her on March 20, 1888, and a note, to secure the payment of which the mortgage was given. The mortgage conveyed to plaintiff the lands sued for, and was executed in due form, and was properly recorded in the probate office. Plaintiff also introduced a patent to the land from the United States government to Marvel C. Brown dated June 6, 1891. Defendant testified, that he was in possession of the S. 1/2 of the N.W. 1/4 of section 20, township 11, range 8 E., and had been in possession thereof ever since 1872; but that he was not in possession of the other lands described in the complaint; that he was in possession of the S. 1/2 of the N.W. 1/4 of section 20, on March 20, 1888, claiming the same as his own, and had cleared a portion of the lands and made improvements thereon; that he could not enter such land, but furnished the money to Marvel C. Brown to enter 160 acres, and that after the land was entered by Brown, he and Brown got a surveyor to stake off 80 acres of it for him, and 80 acres for Brown; that it was thus divided, he keeping the S. 1/2 of the N.W. 1/4; and that after such division he had remained in possession up to the time of the trial, claiming it as his own against all the world.

Denson, Bilbro & Burnett, for appellant.

HARALSON J.

Under the facts of this case, it is not pretended that the defendant ever had the legal title to the 80 acres of land in question. His only claim of right is under a parol agreement with Marvel C. Brown, who entered the land from the government, the appellant having furnished him the money for that purpose, and in consideration therefor, allowed plaintiff to take this 80 acres, the same being one-half of the 160 which was entered by Brown. This was in 1886, before...