Tillman v. Spann

68 Ala. 102 | Ala. | 1880

STONE, J.

In the decree of the chancellor in this cause is the following language : “ Complainant is. entitled to relief as against the defendant, George H. Craig; but, it being represented that the parties have made same settlement or compromise touching their claim against said Craig, no decree is now made, the court reserving the case for such decree as may be in accordance with the terms of said settlement.” In the brief of counsel it is said, “ The chancellor is mistaken in saying that any arrangement was made with Craig, to the effect by him stated.” We feel bound by the statement of the chancellor ; and the question of the extent of complainant’s relief against Craig not having been passed on, we can not consider that question. If the chancellor fell into error, as to the nature and scope of the agreement, that should have been corrected in the court below.

Many objections and exceptions to testimony were filed in the court below; and it is here objected that the chancellor should have considered those objections and excluded the testimony. Some of the objections were, perhaps, too general to authorize their consideration. The portions of the testimony to' which special objection is urged, consist of statements by, and transactions with Thomas Walker, the intestate, deposed to by Maud Walker and her mother, now Mrs. Parish. We can perceive no ground of objection to the testimony of Mrs. Parish, as she is not a party to the suit, and does not appear to assert any interest in the litigation, or in its subject-matter. But we may exclude all that is testified to by her, or by Maud Walker, her daughter, as to any transactions with or statements by Thomas Walker, and the following facts are proved to our satisfaction, by the testimony of other witnesses, whose competency cannot be questioned : That Thomas Walker placed Joe Walker, his son, in possession of certain lands, or Joe Walker took possession, with his father’s knowledge and permission. This possession was 'taken by Joe as a purchaser, but the purchase-price is hot shown. Joe conducted himself in all respects as the owner, claiming the lands, and exercising the customary acts of ownership. Within a reasonably short time, Joe paid the purchase-price, whatever it was ; a survey was then made, marking the dividing line; and Joe, with his family, continued to occupy the lands until his death. Thomas Walker, the father, then became administrator of Joe’s estate, and guardian of his children, and as such controlled, directed and managed the place, as of the estate of Joe Walker, until he, the father, died. Now, whether we date Joe’s holding from the time he finished paying for the land, or from the time Thomas Walker took control as administrator, it gives to him and his children more than ten years of independent holding in their own right, and thus-armed them with a title which could either maintain or defeat an action of ejectment.—Taylor v. Dugger, 66 Ala. 444, and authorities cited; Smith v. Roberts, 62 Ala. 86. And the ten years was complete, after deducting four years, eight months, and ten days, during which the statute was suspended.

The chancellor did not err in denying to complainant dower in the Joe Walker tract. Thomas Walker had no rightful seizure of that land during the coverture, either legal or equitable. For the same reason, the widow was not entitled to quarantine in those lands. Although adjoining the home tract, they were occupied in a different right, and were not connected with the dwelling-house in that sense which is contemplated by the statute.—Code of 1876, § 2238. There being no rightful claim of dower, there could be no quarantine.—Slatter v. Meek, 35 Ala. 528; 1 Brick. Dig. 613, §§ 19, 22.

. There is a remaining question — the widow’s quarantine rights in the remaining part of the plantation ; that part constituting the plantation connected with the dwelljng-house where Mr. Walker resided at the time of his death, not including the “ Joe Walker tract.” It is not denied that Mr. Walker resided there at the time of his death, nor is it denied that the plantation in controversy was connected therewith. It had been, by Mr. Walker, let to rent to various tenants, who were cultivating under their leases for the year; and then Mr. Walker, by trust deed, had conveyed the rent contracts and most of the lands to White and Lockett, as trustees, to secure an admitted indebtedness of a large sum to Maud and Ida Walker, his wards. The trust deed placed the property and rent contracts in the immediate possession and control of the trustees, so far as consistent with said contracts of lease, with authority and direction to collect and account to the beneficiaries for the rents. Complainant claims that she is entitled* to these rents, accruing between the death of Mr. Walker and the allotment of her dower under section 2238 of the Code of 1876. The chaueellor decreed her the rents, only from the time her bill was filed, in November, 1868. Following our former rulings on this question, we feel bound to hold the chancellor q^red in not giving the widow the rents of the lands, not embraced in the “ Joe Walker tract,” from the death of Mr. Walker.—Oakley v. Oakley, 30 Ala. 131; Shelton v. Carroll, 16 Ala. 148; Boyd v. Hunter, 44 Ala. 705; Slatter v. Meek, 35 Ala. 528; Wood v. Morgan, 56 Ala. 397.

We do not consider there is any thing in the other questions argued.

Beversed and remanded.