124 Ala. 403 | Ala. | 1899
— By section 1533 of the Code, “The defendant may in an action of ejectment or in an action
When the plaintiff does not so elect to take, the statute is silent as to the procedure, but under the decisions of this court an important difference is observed between a disclaimer made as to the whole and one which goes only to a part of the premises sued for. In the latter case it has been several times held that the plaintiff may take judgment- as for want of a plea without damages or costs for the part of which the defendant has disclaimed and proceed to trial upon issues made respecting the remainder of the premises. — Sledge v. Doe, 51 Ala. 386; McQueen v. Lampley, 74 Ala. 408; Torrey v. Forbes, 92 Ala. 135; Buxbaum v. McCorley, 99 Ala. 537, and in Callan v. McDaniel, 72 Ala. 96, it was held that the statement of such a partial disclaimer is not a plea and was therefore not subject to demurrer, but that its office was merely to make known upon the record as to what part of the premises defense will be made.
But in Morris v. Beebe, 54 Ala. 300, it was held that a disclaimer of “all right, interest or possession in the premises sued for at or since the commencement of the action, etc.,” was tantamount to a plea denying possession which would prevent the rendition of judgment nil elicit for the premises. That decision went upon the reasoning that the action being a possessory one lies only against one in possession, otherwise there is nothing upon which a judgment can operate and that therefore one out of possession- may defend the suit and protect himself from judgment by plea denying possession. Such a plea is not the disclaimer of interest known in pleading at common law,- the effect of which was to give the plaintiff the interest he demanded and to put an immediate end to the suit. Such a disclaimer was to the interest rather than to the possession in controversy and was not appropriate to actions of ejectment.- — Prescott v. Hutchison, 13 Mass. 440; Morris v. Beebe, supra. It is assimilated to the plea of non tenure as recognized at common law as pleadable in bar of possessory actions.
The plea of disclaimer filed by the defendant John A. Selden extended to the Avhole of the land sued for and Avas sufficient in form and substance. ' The demurrer to this plea is presumed to have been abandoned since no ruling of the court upon it appears to have been invoked or had: The motion to strike it out and the motion for judgment upon it for the premises were each properly overruled.
The replication to the same plea tendered an immaterial issue, and the demurrer to it Avas properly sustained.
The record is silent as to Avhether issue Avas joined upon this plea of John A. Selden, but in such case after verdict it Avill be presumed that issue was taken upon it. Home Protection of North Alabama v. Caldwell, 85 Ala. 607. Under that issue there Avas evidence of John A. Selden’s possession of the land Avhich should have been submitted to the jury. While his residence upon the land did not necessarily constitute possession it Avas a fact from AA-hich, together Avith the other facts in evidence, his possession of the land might have been found, so entitling the plaintiffs to judgment against John A. Selden, Avhatever the result against the other defendant. There Avas error therefore in giving the general affirmative charge in favor of both the defendants.
The demurrer to the original plea No. 2 of Sallie G. Selden must be treated as indivisible, presenting a single objection, though upon different grounds. It was sustained and upon whatever ground the ruling Avas placed the plaintiff cannot complain of it. — McDonald v. Pearson, 114 Ala. 630; Steiner v. Parker, 108 Ala. 357.
That plea after its amendment was apparently abandoned since no attempt Avas made to prove it, and the plaintiffs were not injured by the overruling of their demurrer to the plea as amended. If that plea has merit
As against the defendant Sallie G. Selden, the plaintiffs to succeed were bound to prove title. They claimed through John A. Selden by virtue of their mortgage from him. Such title as they acquired by that mortgage passed to G. B. Johnston by their deed to him bearing the date of July 1st, 1896, and acknowledged July 13th, 1896. The prima facie presumption is that a deed 'which has been in the grantee’s possession was executed on the day of its date.- — 2 Gr. Ev. 297; United States v. LeBaron, 19 How. 73; Purdy v. Coar, 109 N. Y. 448. The presumption however cannot prevail when either attestation or acknowledgment is necessary to complete the execution and the only proof of execution is by the acknowledgment which is made on a subsequent day. The signature to this deed to Johnston purports to have been attested and by proof of that fact.its execution might have been established as of the time it was actually signed, but such proof was not made, consequently the date of the acknowledgment piust be accepted as the time when the conveyance to Johnston became operative. Webb v. Mullins, 78 Ala. 111.
Johnston’s deed to the plaintiffs prior to that time did not divest his subsequently acquired title. The doctrine whereby a deed may operate to pass an after-acquired title applies only where the acquisition is of a title out: standing and adversely held and not to one subsequently acquired from the grantee of the prior deed.
The plaintiffs failed to show title as to Sallie G. Selden and the charge requested by them was rightly refused.
As this appeal must result in a reversál of the judgment, the action of the court in refusing to reopen the evidence after charging the jury and in refusing the motion for a new trial becomes unimportant and unnecessary to be reviewed.
Reversed and remanded,
