Prestwood v. Watson
111 Ala. 604
Ala.
1895
Check Treatment
BRICKELL, C. J.

— A former trial of this case was had in the court below, on a statement of facts reduced to writing, and by the parties admitted to bo true in open court. 'The judgment rendered on that trial was, on appeal to this court, reversed and the cause remanded. Watson v. Prestwood, 79 Ala. 419. The primary question to bo considered is, whether on a subsequent trial, this statement of facts was admissible, and its operation and effect as evidence. For if it was admissible, and binding and conclusive on the parties, a consideration of many of the exceptions reserved is unnecessary. Agreements of this character, intelligently and deliberately made, whether made by the parties in person, or by t^ieir attorneys or solicitors of record, are encouraged and favored. Their iiurpose, generally, is to’save costs and to expedite trials by relieving from rules of practice which in the particular case are deemed mere hindrances, or the dispensation with mere formal proof; or, as in the present case, the admission of uncontroverted facts, of tho existence of which the parties are fully cognizant. Such agreements are sometimes made to avoid continuances, or for some specific purpose, and by their terms are limited to the particular occasion or purpose, and of course lose all force when the occasion has passed, or the purpose has been accomplished. ■ But if by their terms they are not limited, and are unqualified admissions of facts, the limitation is not implied, and they are receivable on any subsequent trial between the parties. Wetherell v. Boyd, 7 Carr. & Payne 6; Langley v. Oxford, 1 Mess. & Welsby 507; Holley v. Young, 68 Me. 215; Central B. U. P. R. Co. v. Shoup, 28 Kansas 394. Speaking of admissions of this character made by counsel of record, Mr. Greenleaf terms them solemn admissions, and says “ they are in general conclusive, and may be given in evidence on a new trial.” — 1 Greenl. Ev., § 186. That the agreement wms not signed by the parties, or by the counsel, was not of importance — their signatures were not necessary to impart to it validity. Private agree*608ments between parties or their attorneys, relating to the proceedings in a pending cause — agreements not made in the presence of the court, the rules of practice require shall be in writing and signed by the party to be bound thereby. — Code, p. 808, rule 14. The rule has never' been supposed to have any application to agreements or admissions made in the presence of the court — upon such agreements or admissions made verbally, every court is necessitated to act daily ; the refusal to recognize and act upon them, would delay the transaction of business, and entail upon counsel and parties much unnecessary labor. The purpose of the rule is to relieve such admissions or agreements from the infirmative considerations attaching to mere oral admissions of facts, imputed to. the one party or the other, and to avoid the unseemly wrangles, disputes and contradictions which would ensue, if they rested only in memory. Where the agreement or admission is made in the presence of the court, it is without the purpose or reason, if not -without the letter, of the rule. And when made in open court and reduced to writing, intended to loe used, and used as an instrument of evidence, and is without limitation as to time or occasion, it cannot be withdrawn or retracted at the mere will of either party. The presence of witnesses to prove the facts stated is waived. If the witnesses had been produced and testified, and they died, or became insane, or removed without the jurisdiction of the court, on a subsequent trial, evidence of their testimony would be admissible.' The admission of the facts dispensing with evidence, if it could be disregarded by either party on any subsequent trial, in the event of inability to produce witnesses to establish them, would often convert such admissions into instruments of fraud and injury. When they are made deliberately and intelligently, in the presence of the court and reduced to •writing, they are of the best species of evidence, and parties cannot be permitted to retract them, as they are not permitted at pleasure to retract admissions of fact, made in any form. If they are made improvidently and by mistake, and the improvidence and mistake be clearly shown, the court has a discretion to relieve from their consequences; a discretion which should be exercised sparingly and cautiously. — 1 Greenl. Ev., § 206; Harvey v. Thorpe, 28 Ala. 250, There was no application by *609either party for relief from the agreement, and neither party should have been bound to give evidence in controversy of the facts > therein stated. The loss of the writing, rendered admissible secondary evidence of its contents. The best evidence would have been a certified copy of the transcript in this court on the former trial. Unless by consent, the statement found in the published report of the case, was not admissible.

On the former appeal, it was decided that the facts admitted made a prima facie case entitling the plaintiff to a recovery. The correctness of this conclusion is not now assailed in argument; but it seems to be supposed that the evidence of the possession of Whitehead, and of the defendant Prestwood to whom he subsequently conveyed, continuing for more than ten years, in open hostility to the title of the intestate of the plaintiff "was a bar to the action. The intestate, as was decided‘on the' former appeal, had a legal title, coupled with condition of defeasance or reversion on the subsequent happening of one of the enumerated events, on which the statute; declares the lands shall revert. The land is a sixteenth-section granted for school purposes by Congress to the State for the use of the inhabitants of the township. Under the concurrent legislation of Congress and of the-State, these sections in the different townships have been sold. The legal title is in. the State, and until the final payment of the purchase-money and the issue of a patent by the State, that title is not divested, though the purchaser acquires an inchoate title, the right of possession, and can maintain ejectment against allwhowrongfuly enter and withhold it. The legal title remaining in the State, under the general principles of the common law there could not be adverse possession of the lands,-as there could not be an adverse possession against the government. — Iverson v. Dubose, 27 Ala. 418. The statute now modifies this doctrine, and actions at the suit of the State against a citizen thereof, for the recovery of real or personal property, and actions by or for the use of any township, for the recovery of sixteenth sections or other school lands belonging to the township, are limited to twenty years. — Code,§ 2613. There was nota hostile possession for that period, prior to the commencement of this suit, claimed in the court below, and if it had *610been claimed, it would not have found support in°the evidence.

The question of the more importance to the parties is, whether in the statutory real action, damages for waste, for the destruction of timber growing on the lands, are recoverable. The statute by its own terms limits the damages to what are known as mesne profits ; compensation for use and occupation. The words are : “Damages in actions for the possession, or for the use and-occupation of land, must be computed to the time of the verdict.” — Code, § 2716. And such has been the construction of the statute. — Turnipseed v. Fitzpatrick, 75 Ala. 297; Morris v. Beebe, 54 Ala. 309. By the common law, damages or only nominal damages were rocoverable in an action of ejectment; and the rule has been modified only so far as to authorize a recovery of mesne profits. The several instructions given the jury in reference to the recovery of damages for the destruction and removal of timber were erroneous; compensation for use and occupation is the full measure of recovery to which the plaintiff was entitled.

Reversed and remanded.