Watters v. Brown

• Decision Date: 04 April 1912
• Citation: 58 So. 291,177 Ala. 78
• Parties: WATTERS ET AL. v. BROWN.
• Court: Alabama Supreme Court

58 So. 291

177 Ala. 78

WATTERS ET AL. v. BROWN.

Supreme Court of Alabama

April 4, 1912

Appeal from Circuit Court, Perry County; B. M. Miller, Judge.

Ejectment by Lizzie Brown against G. F. Watters and others. Judgment for plaintiff, and defendants appeal. Affirmed.

There was a division by metes and bounds of a tract of land purchased jointly by De Yampert, McCurdy, and Tillman in the year 1891. The tract contained 300 acres, and the bill of exceptions recites that the evidence tended to show that under such partition the lands sued for were set off and allotted to De Yampert, who entered into possession of same and cultivated and claimed it adversely for two or three years, and that about this time, with the consent of De Yampert, and in recognition of his title, McCurdy built a house on a portion of this land, and other improvements. The bill of exceptions also recites that there was evidence in the case tending to show that Randall McCurdy obtained this land in the allotment, and that he remained on it until some time in January, 1900, when, under threats of violence by Watters, he moved off the premises, and Watters entered, and that after Watters entered and went into possession, and while so in possession, plaintiff moved into the house. The bill of exceptions further recites that there was evidence tending to show possession by McCurdy of the land for 12 or 15 years prior to the bringing of this suit. In 1906, some time after the division, McCurdy and his wife executed and delivered to Mrs. Arthur Loeb a mortgage to secure the payment of $1,500, and conveyed to her a third interest in the entire tract, and in 1907 the mortgage was foreclosed and George F. Watters became the purchaser, and procured a deed under the powers contained in the mortgage. In February 1909, Randall McCurdy, Bob Tillman, and the heirs of John De Yampert made a deed to the plaintiff, conveying all their right, title, and interest, claims, and demands of every kind in the land involved in this suit and other lands covered by the deed.

Charge 3, given for plaintiff, is as follows: "If the jury believe the evidence, then they must find for the plaintiff for one undivided two-thirds interest in the lands sued for." The first assignment of error is: Objections to question propounded to Randall McCurdy as to who owned or claimed to own the remaining two-thirds interest in said lands; and (2) to question propounded to Randall McCurdy "If you say that Jordan De Yampert and Bob Tillman owned or claimed to own the remaining two-thirds interest in said land, please state what interest each of them owned or claimed to own therein."

W. F. Hogue, of Marion, and R. B. Evins, of Greensboro, for appellants.

Clifton C. Johnston, of Marion, for appellee.

ANDERSON J.

This is an action of ejectment for a small parcel of land embraced in a tract of 300 acres purchased by Jordan De Yampert, Randall McCurdy, and Bob Tillman in the year 1891, and which was by parol divided between said three purchasers during said year or during the early part of the succeeding year. There was a conflict in the evidence as to whether or not the land in controversy was a part of the De Yampert or McCurdy allotment, and whether or not the said De Yampert or McCurdy had the adverse possession of same for over 10 years after said division. This question was squarely submitted to the jury, resulting in a finding for the plaintiff as to the whole interest in the...