Barron v. Barron , 122 Ala. 194 ( 1898 )

DOWDELL, J.

— This is a common laAV action of ejectment. . The record shows that.the cause was tried at the October term '3896 of the circuit court of St. Clair county. On the 34th day of October, the day of the trial of the. cause, a written agreement was entered into by counsel, bv which it was agreed that the defendant should have sixtv davs “from the expiration of this term of the court iu which to preñare and have signed a bill of executions.” On the dav following, the 15th, being a dnv of the term, the defendant put upon the motion docket a motion for a new trial, At a subsequent day, bud being the last day of the term, the court made and entered upon the record an order, in all respects regular, for an adjourned term of said court to begin on the 30 th day of November following to complete the unfinished business of the regular term. The motion for a new trial in this cause was not heard at the regular term, and was a part of the unfinished business of that term. On the 4th day of December, being a day of the adjourned term Avhich began on Nov. 30th, the motion was heard and by the court OA'erruled, and at that time the court made an order granting defendant ninety days to prepare and have signed a bill of exceptions “in the cause in chief and also on the motion for a new trial.” The bill of exceptions AA-as signed on the 3d day of February following.

A motion for a new trial seasonably made suspends the judgment in the cause, and it does not become final for purposes of an appeal until such motion is disposed of. “The cause is said to be in fieri by reason of the motion; and the court may make any order afterwards that maA'- be jumper.” — Florence Cotton & Iron Co. v. Field, 104 Ala. 471; Pratt v. Keils, 28 Ala. 396; Walker v. Hale, 16 Ala. 27. The adjourned term of a court is but a continuation of the regular term. — Keith v. State. 91 Ala. 2 ; Hundley v. Yonge, 69 Ala. 89; Van Dyke v. State, 22 Ala. 57. The court had the right and authority at the adjourned term to fix the time for the bill of exceptions to be signed in vacation; the motion for a new trial having been made at the regular term and not disposed of until at the adjourned term. The motion to strike the bill of exceptions must, therefore, be overruled.'

On the trial the defendants filed a plea in abatement, to the effect that there had been a former trial in ejectment as to the land in question in which costs had been adjudged against Jesse Barron, through whom plaintiff here claimed title, and that such costs had not been paid. The plea disclosed that the title relied on here by plaintiff Asms under a mortgage executed by Jesse Barron long prior to the institution of the suit in which it is alleged the costs Avere adjudged that remain unpaid. The present plaintiff was in nowise connected with that suit, nor Avas the title here relied on by him, derived from Jesse Barron after the pendency of said suit. The plea in abatement was properly stricken by the court on plaintiff’s motion to strike the same.

The plaintiff based his right of recovery of the land on his title under the mortgage executed by Jesse H. Barron to one W. G. Moore/bearing date January 14, 1884, and also upon the adverse possession of said land for ten years by said Jesse I-I. Barron and his vendor, Mary Clements. Upon the trial the plaintiff introduced evidence which tended to support his theory of the case, showing an adverse possession of the land beginning with Mary Clements about the year 1872 and by Jesse H. Barron who purchased the same from said Mary in 1873, on down to 1887, when the former ejectment suit was begun by Rebecca Barron and Ben F. Clements against said Jesse H. Barron.

The court admitted in evidence against the objection of defendants, a certificate of redemption of the land in question, given by the probate judge of St. Clair county to Mary Clements in.1873, which described the lands according to government survey and numbers. The said certificate recites the assessment of the land to the estate of J. S. Clements, deceased, (the husband of Mary), the sale for the taxes, purchase, etc., and then purports to invest the said Mary with the title, as being a person in interest, and having a right to redeem. The certificate was offered in connection with other evidence tending to show an adverse holding by Mary Clements. As a muniment of title it was inadmissible, but as color of title, to show and define the boundaries of an actual possession it was admissible. — Doe ex dem. Hooper v. Clayton et al., 81 Ala. 391; Dillingham v. Brown, 38 Ala. 311.

One of the issues in the case being as to adverse possession of the land, the objection to the question put by plaintiff to the witness Thompson, “If he (witness') did not buy a nortion of said land from the said Jesse H. Barron in the year 1879?” was properly overruled by the court; the bill of exceptions reciting that no objection was made for failure to produce the deed. The testiraojiv sought by the question was clearly relevant as tendin0’ to show the nature and character of Jesse H. Barron’s possession, -whether he was claiming the same as his own. No greater act of ownership could be exercised over land by a party in possession than that of an absolute disposition of the same by sale”. For like reason the statement by defendants’ witness Williams upon his cross-examination by plaintiff, that “he (witness) took a mortgage from said Jesse H. Barron on a portion of said land to secure a loan,” was relevant to the issue. Moreover, the objection to this statement was general, no ground being stated, and was for that reason properly overruled.

The defendants introduced evidence tending to show that the adverse possession of the land by plaintiff’s grantor, Jesse 1-1. Barron, had been interrupted and broken by the entry thereon of B. B. Barron and Ben. F. Clements. This rendered the record in the unlawful detainer suits brought by the said Jesse H. Barron against these parties, and which he prosecuted to a successful issue, putting them off the land, clearly relevant in rebuttal of the theory of the defendants as to a gap or chasm in the continuity of the adverse possession by 3 esse H. Barron.

The record of the ejectment suit brought by Ben. F. Clements and Rebecca Barron against Mary Clements in 1872, and in which the plaintiffs took a voluntary non-suit in 1874, was relevant to the question of adverse possession of the land by Mary Clements, which was one of the issues involved in this case. — Ponder et al. v. Cheeves et al., 104 Ala. 307.

The description of the land in the mortgage of Jesse II. Barron to W. (t. Sí core, of January 14, 1884, which was offered in evidence by the plaintiff, being as follows: “The east half of the southeast fourth of section thirteen, township thirteen, range four, east,’’ without giving the State and county, or whether east of the St. Stephens or Huntsville meridian, Avas imperfect and insufficient, and Avithout aid of identification, would have rendered the mortgage inadmissible in evidence. — Goodwin v. Forman et al., 114 Ala. 489. But it was competent by parol evidence to identify the land and thus supply the deficiency in description in the mortgage. — Webb v. Elyton Land Co., 105 Ala. 471; DeJarnette v. McDaniel, 93 Ala. 215; Meyer Bros. v. Mitchell, 75 Ala. 475; Chambers v. Ringstaff, 69 Ala. 140.

It is insisted by appellants, that the court below erred in not excluding the mortgage, because the record fails to show that there was any proof that the land was situated in St. Clair county. In making their objection in the circuit court the defendants did not point out or specify this defect in description as a ground of objection, and their bill of exceptions recites, “The plaintiffs then offered in evidence in their behalf a paper writing purporting to be a mortgage given by Jesse H. Barron and his wife to W. G. Moore cm the 14th day of January, 1884. In and by which said mortgage said Jesse II. Barron and wife mortgaged the lands in controversy to said W. G. Moore,” etc. In the absence of a specific objection in the trial court pointing out the defective description in the mortgage, under the above recital in the bill of exceptions we will presume in favor of the ruling of the trial court, that it was understood or agreed by the parties that the land in the mortgage and that in controversy was the same, and thus dispensing with parol proof in order to identify it.

There was evidence going to show that in 1881 B. B. Barron, the husband of Rebecca Barron, was moved upon the land by Jesse H. Barron, as the tenant of said Jesse under a lease contract, and that the said Rebecca Avent with her husband, the said B. B. Barron, and after thus moving upon the land with her husband, set up a claim to it in her own right, and some time thereafter the said B. B. Barron, also, set up a claim to the land in right of his wife, the said Rebecca, and repudiating the relation of landlord and tenant as between himself and said Jesse, and under which he entered into possession. As soon as this fact came to the knoAvledge of the said Jesse, he immediately brought his suit of unláwful detainer against the said B. B. and prosecuted the same to a successful termination, dispossessing the said B.' B. The said wife Rebecca went away with her husband upon his being put' out of possession under said suit. Under this state of the evidence, there was no error in that portion of the court’s oral charge relating to the going upon the land by the said wife, Rebecca Barron, and which was excepted to by the defendants. The undisputed evidence in the case shows that the payments made by the plaintiff John T. Barron to W. G. Moore and to J. AY, Moore, executor of W. G. Moore, were made by him as purchaser of the mortgage, and not as payment on the mortgage debt, and hence the court committed no error in making that statement to the jury in the oral charge.

The evidence without conflict shows that the undivided one-third interest in the land claimed by the defendant 1-Iood, was held and so claimed by him through a sheriff’s deed, under a levy and sale by the sheriff of such undivided one-third interest as the property of the said Jesse II. Barron, and that long subsequent to the execution of the mortgage by said Jesse to W. G. Moore, and under which the plaintiff ivas claiming title. This warranted the giving by the court of written charge numbered one requested by the plaintiff. The propositions of law asserted in the remaining written charges given at the plaintiff’s request are correct, and therefore were properly given. The written charges numbered one, two, four, five, six and eight, requested by defendants, were in effect the general affirmative charge as to the defendants named, and were not warranted under the evidence and properly refused. The charge No. 9 was properly refused, being not only misleading, but does not state the law correctly. There may be a claim of ownership, but when it comes to the question of possession, there must be something more than a mere claim- — must be an actual possession.

The uncontradicted testimony of John T. Barron is that he purchased from W. G. Moore, the mortgagee, in his lifetime the mortgage in question and which was executed and given by Jesse F. Barron, for an agreed sum i r price, and that he the said John T. paid said Moore during his life all of said purchase price but about sixty dollars, and this balance of sixty dollars, he paid to J. W. Moore, the executor of W. G. Moore, who thereupon transferred or assigned the mortgage to said John T. Barron. The assignment or transfer endorsed on the mortgage by J. AY. Moore was insufficient to pass the legal title to the lands contained in the mortgage. One of the demises in the complaint is laid in the heirs at law of AAr. G. Moore. It is contended by appellants that the payments made by John T. Barron operated to extinguisli the mortgage debt, and thereby divested the title out of the heirs at law of W. G-. Moore, and revested the same in Jesse P. Barron, the mortgagor. We think this contention without merit, and unsupported by the evidence or sound reasoning. There is nothing in the evidence to show that the payments made by John T. Barron were intended or contemplated by either Barron or Moore as payments on the mortgage debt, but on the contrary were payments made in the purchase of the mortgage. The transfer and assignment endorsed upon the mortgage by J. W. Moore repels the idea of a payment and satisfaction of the mortgage debt. Under this view of the case, and we have no doubt of the correctness of it, the written charges 10, 11 and 12, requested by the defendants, were properly refused.

We find no error in the record, and the judgment of the circuit court is affirmed.