Wisdom v. Reeves

• Decision Date: 07 June 1895
• Citation: 18 So. 13,110 Ala. 418
• Parties: WISDOM ET AL. v. REEVES ET AL.
• Court: Alabama Supreme Court

18 So. 13

110 Ala. 418

WISDOM ET AL. v. REEVES ET AL.

Supreme Court of Alabama

June 7, 1895

Appeal from circuit court, Etowah county; John B. Tally, Judge.

Action by John S. Reeves and others against John H. Wisdom and another. Judgment for plaintiffs. Defendants appeal. Reversed.

This was a statutory action of ejectment, brought by the appellees, as heirs of John S. Reeves, deceased, against John H. Wisdom and John H. Harcrow, who was in possession of the lands sued for as a tenant of the said Wisdom. The action was instituted on March 10, 1891. When the cause was called for trial, the defendant Harcrow asked leave to file a plea of disclaimer, and upon the objection of the plaintiffs, the said plea was not allowed, and to this ruling the defendant Harcrow duly excepted. Thereupon Harcrow asked leave to file a plea setting forth that he was only a tenant of the defendant Wisdom, and had paid the rent due from him up to the time of the bringing of the suit. The plaintiffs objected to the interposition of this plea, and the court sustained the objection, refused to allow the plea filed, and to this ruling the defendant Harcrow duly excepted. The defendant Wisdom filed a plea of not guilty, and asked leave to file a plea of the statute of limitations of 10 and 20 years respectively, and liberum tenementum. Upon the plaintiffs' objecting to the defendants being allowed to file these pleas, the court sustained the objection, would not allow the pleas to be filed, and to this ruling the defendant Wisdom duly excepted. Upon issue being joined upon the plea of not guilty, the plaintiffs offered in evidence a patent issued to David Dale, dated September 2, 1850, which patent granted to the said Dale the lands sued for in the present action. There was then introduced in evidence by the plaintiffs the original deed of said David Dale to John S Reeves, the plintiffs' ancestor, bearing date October 31 1851, conveying the property in controversy. This deed was properly executed and acknowledged. There was indorsed upon said deed an assignment from John S. Reeves, which is copied in the opinion. The defendants offered in evidence a deed executed by Nathan Reeves and his wife, on January 14, 1886 conveying to the defendant J. H. Wisdom the lands used for and this deed was properly executed, acknowledged, and recorded in the office of the judge of probate of Etowah county. The facts in reference to the suit brought by the present plaintiffs against the defendant Wisdom, and the rulings on the evidence in the present suit in reference thereto, are sufficiently stated in the opinion, as are also the facts in reference to the rulings of the court upon the objections to the deposition of Nathan Reeves taken in said prior suit, and certain portions of said witness' deposition.

Upon the introduction of the defendant Wisdom as a witness, he testified that he had known Nathan Reeves, his grantor, for 15 years before his death, which occurred in the summer of the year 1891; that said Reeves was living on the lands in controversy when he first knew him, and lived on them until he sold them to the witness on January 14, 1886. The witness was then asked "If, in the year 1880, he saw said Nathan Reeves in possession of said lands; and, if so, what, if anything, did he tell him how he was holding said land?" Plaintiffs objected to this question, because it called for irrelevant and illegal testimony, and the witness was incompetent to prove any transaction with or any declaration made by said Nathan Reeves. The defendants expected to prove by said witness, in response to said question, that he saw the said Nathan Reeves on the land in controversy and in possession thereof in the year 1880, and that while the said Reeves was thus in possession he told the witness that the lands belonged to him, Nathan Reeves. The court sustained the plaintiffs' objection to this question, and the defendants duly excepted. Defendants then proposed to prove that the land was conveyed to the defendant Wisdom by Nathan Reeves on January 14, 1886, in payment of a debt due by said Nathan Reeves to the defendant, but, upon objection by the plaintiffs to this testimony, the court refused to allow such proof, and the defendants duly excepted. The witness Wisdom testified as to the making of permanent improvements upon the property and the value thereof, and that the rental value of the lands, without the improvements, was nothing. In rebuttal, the plaintiffs introduced George W. Garmony as a witness, who testified that he knew Nathan Reeves in his lifetime, and knew the lands in controversy. The plaintiffs asked the said witness "if he had ever heard said Nathan Reeves say to whom said lands belonged." The defendants objected to this question, because it called for illegal and irrelevant testimony, and that any declarations made by said Nathan Reeves were not binding upon the defendants. The court overruled the objection, to which ruling the defendants excepted, and the witness answered: "Nathan Reeves said that the lands belonged to his son, John S. Reeves." The defendants moved to exclude this answer, upon the grounds of the objection to the question, and duly excepted to the court's overruling their motion. The witness Garmony was shown the original deed from David Dale to John S. Reeves and the indorsement thereon, and was asked "if he ever saw said deed before, and when." He answered that he saw the deed in 1859. The plaintiffs then asked the witness "if the said transfer was on said deed then." The defendants objected to this question because it was illegal and irrelevant, and was not a proper way to show the transfer was not genuine. The court overruled the objection, and the defendants duly excepted, and the witness answered: "The transfer was not there in the year 1859." The defendants moved to exclude this answer upon the grounds of the objection to the question, and duly excepted to the court's overruling their motion. This witness further testified that said transfer was on the deed in the year 1868 when he saw it again, and that in the year 1859, when John S Reeves proposed to sell the land in controversy, Nathan Reeves was present, and did not object to John selling the land, but told the witness that he (witness) would get a good title. The plaintiffs then asked the witness "if he had ever asked Nathan Reeves how the said transfer came to be on said deed." The defendants objected to this question, upon the same grounds of the objection interposed to the previous questions, and duly excepted to the court's overruling their objection; and upon the witness answering that said Reeves told him, "It is none of your business," the defendants moved to exclude this answer, and duly excepted to the court's overruling their motion. Upon the introduction of W. G. Brockway as a witness for the plaintiffs, he testified that he was the cashier of the First National Bank of Gadsden, Ala., and had had experience in handwriting all of his life. Upon the witness' attention being called to the indorsement of transfer on the deed from David Dale to John S. Reeves, he said that he had examined it the evening before with his naked eye and with a glass, and he was then asked "whether or not, in his opinion, the date, 1851, had been placed there since the original indorsement was put there." The defendants objected to this question upon the grounds that the witness was not shown to be an expert in such matters, that it was illegal and irrelevant, and that the indorsements could not be attacked in that way. The court overruled the objection, and the defendants duly excepted. The witness answered that, "in his opinion, the date, 1851, had been placed there later, and at some time subsequent to the making of the original indorsement, and that, in his opinion, the body of the transfer and the signatures thereto, both of the transferer and the witnesses, were in the same handwriting." The defendants objected to this answer, moved to exclude the same, and duly excepted to the court's overruling their objection. One William Young was introduced as a witness in behalf of the plaintiffs, and testified that when John S. Reeves went to the war in 1861, he was in possession of the lands sued for, and that he had heard Nathan Reeves say that the said lands belonged to John S. Reeves. George W. Hendrix, another witness for the plaintiffs, against the objection and exception of the defendants testified that he heard Nathan Reeves, while in possession of the lands in controversy, 16 or 18 years ago, say that, while the lands belonged to John S. Reeves, he (Nathan Reeves) would not be disturbed in his possession during his lifetime. Mrs. Rhoda Reeves, the widow of John S. Reeves, testified that, in 1861 and 1862, Nathan Reeves said to her that the lands belonged to her and her children. The defendants objected to this testimony, and duly excepted to the court's overruling their objection. John H. Reeves, one of the plaintiffs, testified that in 1885 or 1886 Nathan Reeves told him that the lands in controversy belonged to his mother and her children. Upon the introduction of James S. Reeves, one of the plaintiffs, as a witness, he testified that he was in possession of the 40 acres of land immediately east of the land sued for, and thereupon the plaintiffs asked him "if he ever demanded of Nathan Reeves the title deeds to said east 40; and, if so, when, and what did he say?" Defendants objected to this question, and duly excepted to the court's overruling their objection. The witness answered: "I asked him, in 1886 or 1887, to give me the papers to the east 40, and he refused to do so." This witness further testified that Nathan Reeves afterwards said that the east 40 and the 40 acres in controversy belonged...