60 Ala. 145 | Ala. | 1877
We agree with the chancellor, that there is nothing in this record which authorizes the reformation of the allotment of homestead, made by the commissioners. They selected and allotted the west half of the south-west quarter of section seventeen, and the west half of the northwest quarter of section twenty, township twenty-three, range one, west; and appellee’s claim must be limited to those particular numbers of land. According to the testimony, they embrace the residence of DeGraffenreid, and most of the out-buildings. We think the allotment was sufficiently certain and definite, under sections 2880-81 of the Eevised Code; the law which governed the claim at the time the homestead was set off.
We also agree with the chancellor that, this allotment having been made by commissioners duly appointed, when executions were in the hands of sheriff Cole, it was not necessary for DeGraffenreid again to assert his claim, or have a new allotment, when alias executions went into the hands of Cole’s successor in office. The right to occupy, and to remain in undisturbed possession, was secured to DeGraffenreid by the allotment. No objection or exception
White, the successor in office of sheriff Cole, levied upon and sold seven hundred and twenty acres of land as the property of DeGraffenreid, including the lands which had been set off as homestead ; Jones, the appellant, became the purchaser, and received the deed of the sheriff, conveying the lands to him. Jones brought his statutory action of ejectment against DeGraffenreid for the recovery of the lands, recovered in his suit, and, under a writ of possession, was put in possession of all the lands, except the homestead. This DeGraffenreid continued to occupy, by permission of Jones. The present bill was then filed, the chief object of which was to secure his homestead, and to be quieted in his possession. The bill avers most of the facts above stated, and the others are shown in the pleadings and proofs. No excuse is offered, or attempted to be given, why the action of ejectment was not defended at law.
Our statute (Code of 1876, § 2959] has rendered it unnecessary to employ the fictitious proceedings in actions of ejectment, and the suit between these parties was brought under that statute. To what extent, if any, that statute will affect the judgment as an instrument of evidence, the wants of this case do not require us to decide. Section 2969 does limit the number of suits in ejectment that may be brought “ between the same parties, in which the saíne title is put in issue,” when the judgments are in favor of the defendant. This, at least, shows that the right to bring the action of ejectment between the same parties, on the same title, is not limited to one trial.
The decree of the chancellor is reversed, and the bill here dismissed, at the cost of appellee, in this court and in the court below.