Callan v. McDaniel, 72 Ala. 96

Callan v. McDaniel

72 Ala. 96 | Ala. | 1882

BRIOKELB, C. J.

1. In ejectment, or in the corresponding statutory real action, the plea of not guilty is an admission by the defendant that he is in possession of the premises sued for, unless he accompanies it with a statement upon the record, limiting the extent of his possession. In that event, it becomes an admission of possession only of such part of the premises as is designated in the statement. — Code of 1876, §§ 2692-3. The statute is an affirmation of the 24th rule of practice in the Circuit Courts, in reference, to the consent rule in actions of *103ejectment, which was borrowed from a rule of the King’s IBench.—2 Tidd’s Pr. 1226; Bernstein v. Humes, 60 Ala. 582. It is not pleading which is contemplated, but simply a statement upon the record of the extent of the possession of' the defendant, that it may be known for what' part of the premises he appears and defends. The statement is sufficient— answers all the purposes for which it is intended — when with reasonable certainty it designates and describes a part, so that it is distinguished from the residue of the premises. If it be vague and uncertain, a motion should be made to strike it from the record, leaving the plea of not guilty to stand an admission of the possession of the entire premises. It is not, like pleading, subject to demurrer. The statement in the present case, to which a demurrer was interposed, is not objectionable for uncertainty or indefiniteness of description of the part of the premises of which possession is admitted. There could be no difficulty in separating that part from the residue of the premises; and the inference is just, that the plaintiffs, who are presumed to know the entire premises, were not left in doubt as to the part for which the defendant appeared to litigate with them the title, or the right of possession.

2. It is unimportant whether the Circuit Court erred or not, in refusing to permit the deed from Milly Smith to the plaintiffs to be read in evidence, without other proof of execution than the certificate of acknowledgment. The execution was afterwards sufficiently proved, and the deed read in evidence, rendering its rejection in the first instance wholly immaterial.

3. There are several objections to questions 'propounded to witnesses, but the bill of exceptions does not show the evidence which was elicited by them. It may be the answers consisted only of a disavowal of all knowledge touching the matters of which inquiry was made, or were wholly immaterial, or the evidence was favorable to the plaintiffs. There can not be a reversal of a judgment, because improper questions are propounded to witnesses, unless it is shown that in response to 'them improper evidence was elicited and admitted.

4. The bill in equity filed by the plaintiffs against the defendant, was verified by affidavit. It is true, that a bill in equity, not verified, is regarded as containing rather the suggestions of counsel, than the deliberate statements of the complainant, and is not, in a collateral suit, admissible evidence against him of the facts stated in it. — 1 Brick. Big. 829, § 353. But, when it is verified, because of the solemnity and deliberateness attached to an oath taken in the course of judicial proceedings, a different rule obtains. The bill is then treated as-a statement of facts admitted by the complainant, and becomes *104evidence against him in collateral suits.—McRea v. Ins. Bank of Columbus, 16 Ala. 755; McLemore v. Nuckolls, 37 Ala. 662. The bill with explicitness avers the execution of the lease by Milly Smith to the defendant. That was a material fact, upon which the equity of the bill depended. The averment was. as against the plaintiffs, sufficient evidence of the lease, and of the authority of Brandon, as agent, to execute it.

5. The term of the lease was three years, reserving to the lessee the right to occupy for three years such parts of the premises as lie reduced to cultivation each year of the term. The reservation, like a covenant for quiet enjoyment, or a covenant to cultivate the land in a particular manner, or a covenant for a renewal of the lease, runs with the land, and is binding upon the assignee of the reversion. — Taylor’s Land. & Ten. § 262. It was, of consequence, proper to permit the defendant to prove that, in 1879, lie had cleared six acres of the lands. Of it he was entitled to possession for three years, or a period extending beyond the commencement of the present suit. Nor can we perceive any objection to evidence that, before the commencement of the suit, the defendant had surrendered to the plaintiffs the possession of parts of the premises.

6. The writ of injunction was offered, for the purpose of showing that the lands of which defendant claimed to hold possession were cleared after the issue and service of the writ, and in violation of its mandate. If this be true, the violation of the injunction was a contempt of the Court of Chancery, and could in that court, while the proceedings were in fieri, have been punished. But, if the plaintiffs submitted to the violation, suffering the suit in equity to continue in progress, and ripen into a final decree, other courts can not inquire into it collaterally, and visit it with a forfeiture of righ+s the court of equity may not have been willing to impose. In that court, there are many equitable considerations involved in an application to punish a party for a violation of an injunction while the cause is in fieri. The motives of the party obtaining the injunction, the good or bad faith, and the conduct of the party charged with its violation, are all considered. If other courts should intervene, and determine collaterally that there has been the violation of an injunction, the consequences which are to result could not he adjusted as a court of equity would adjust them; and if the parties aggrieved do not apply to that court, they can not ask other courts to assume its jurisdiction. If the suit in equity has passed into a final decree, and the injunction been perpetuated, the court adjudging the defendant was without right to clear the lands in controversy, the decree would be admissible evidence, and conclusive. That is not, however, the question now presented.

*1051. There was no conflict between the evidence of Bussell ■on the trial in the court below, and the statements in the former affidavit introduced to impeach him. The two are reconcilable, if they are not corroborating. Impeaching statements, or statements supposed to be impeaching of a witness, are inadmissible, unless they are contradictory of a material statement made by him on the trial. 'When the two statements are reconcilable, the one can not be received to contradict the other. — 1 Whart. Ev. § 558.

8. The plaintiffs having read in evidence a part of the answer of the defendant to the bill in equity, it was the right •of the defendant to read the whole.—Lawrence v. Ocean Ins. Co., 11 Johns. 269.

9. The several instructions requested by the plaintiffs touching the execution of the lease, it may be conceded, assert correct legal propositions. But it is obvious, if they had been given, without the aid of additional or explanatory instructions, the attention of.the jury would have been withdrawn from the evidence of Branclon’s authority to execute the lease. Instructions requested, ignoring or obscuring material evidence, or which would devolve upon the court the duty of giving additional instructions to prevent them from misleading, may be refused. The remaining instructions requested were properly refused. The sale to the plaintiffs did not, of itself, terminate the lease, nor did it terminate the right of the lessee to continue the clearing of the lands. The purchasers could have terminated the lease, and all rights of the lessee under it, by paying him a reasonable valuation for the unexpired term. That is the only event upon which the lease stipulated the lessee would surrender possession, if the lessor made sale of the lands during the term. Until the happening of that event, the lease continued in full force, and its covenants w>ere binding upon the assignees of the reversion.

10. There can be no doubt of the correctness of the first, third, and fourth instructions, given at the instance of the defendant. They state simple truisms. The second instruction, it may be, is so expressed, that it had a tendency to mislead the jury. It may have conveyed to them the impression, that the plaintiffs could not recover unless, before the commencement of the suit, they had actual possession of the lands in controversy, and the defendant entered and disposed them; a proposition manifestly erroneous, and which it can not be presumed the court intended to assert. It is capable of the construction that, to maintain the action, the plaintiffs must have been seized — must have had a seizin, giving to them constructive possession, or rather drawing to it the right of immediate possession ; and after the seizin, the defendant must have wrong*106fully entered, or must have wrongfully remained in possession. Adopting this construction, the proposition asserted is, that a present right of entry and possession on the part of the plaintiffs, and a wrongful possession on the part of the defendant, must concur to support the action. The instruction is very nearly a repetition of the words of the statutory form of complaint, and was, perhaps, drawn from them. The tendency of the instruction to mislead the jury, would have justified the court below in refusing to give it. But the court having given it, if the plaintiffs apprehended injury from it, an explanatory instruction should have been requested, obviating the tendency to mislead. The tendency of instructions given to mislead, is not an error which will avail to reverse a judgment. — 1 Brick. Dig. 344, § 129.

We find no error in the record, and the judgment must be affirmed.