Carlisle v. Killebrew

89 Ala. 329

• Court: Supreme Court of Alabama
• Decided: November 15, 1889
• Status: Published

Opinion

SOMERVILLE, J.

One M. N. Killebrew, under whom the appellee in this case claims, had, prior to the present suit, recovered certain premises from the plaintiff, Carlisle, in a real action in the nature of ejectment. He was formally put in possession by the sheriff under a writ of possession, and under such claim of right gathered and appropriated the crops of cotton, corn and fodder growing on the land. Carlisle afterwards took possession of the land, without resort to the courts, and brought the present action in detinue to recover the crops taken away by Killebrew.

I. The general rule of the common law is, that one who recovers land in ejectment is entitled to the crops then growing on the premises, they being regarded as part and parcel of the realty. — McLean v. Bovee, 24 Wis. 295; 1 Amer. Rep. 185; Page v. Fowler, 39 Cal. 412; 2 Amer. Rep. 462; Thweatt v. Stamps, 67 Ala. 96. In other words, “as between the successful plaintiff in an action of ejectment, and the evicted defendant, growing crops are a part of the realty.” Van Allen v. Rogers, 1 Amer. Dec. 113; note, p. 116.

The statutes of Alabama modify this principle only by providing that, if the defendant in ejectment has a crop planted or growing on the premises recovered from him by tlie plaintiff, lie may stay the writ of possession until the expiration of the year, by giving bond and sureties to the plaintiff to secure the rent to him, which is declared to have the force and effect of a judgment upon the defendant’s failure to pay the rent at the expiration of the year. — Code, 1886, §§ 2712-13. No such bond having been given in this case, this statute can have no bearing on the rights of the parties litigant.

2. The main question in the present suit is, whether the defendant, Killebrew, can be permitted to introduce in evidence, in this action for the crops severed from the freehold, the judgment of recovery in ejectment, and, if so, what force as evidence this judgment will exert. It is insisted by the appellant, that the court below erred in admitting this judgment, and the writ of possession issued on it, because the question-of title to the land can not be litigated in a personal action; and for the further reason, that, at common law, a prior judgment in ejectment was not admissible in a subsequent suit between the same parties. The former principle, applied to this case, operates to preclude the plaintiff, Carlisle, from challenging the defendant’s right of possession and title acquired under his judgment in ejectment.—Beatty v. Brown, 76 Ala. 267; Stringfellow v. Curry, Ib. 394. The latter rule is so stated by some of the old writers, and is based upon the use of fictitious names in the action of ejectment proper, which is still tolerated in our forms of practice. But this is not a second action of ejectment, in which it is sought to use as evidence a judgment recovered in a former action. The present is a personal action; and the rule applies as against the plaintiff himself, that he can not collaterally raise the question of title to the land, by way of showing incidentally his right to the crops severed from the freehold.—Martin v. Thompson, 120 U. S. 376.

In our practice, under the statute, it requires two verdicts and judgments for the defendant to bar further suit by the plaintiff in ejectment, or the real action in the nature of ejectment. — Code, 1886, § 2714. But, where the question of title arises collaterally, as in an action for mesne profits, or otherwise, the record of a recovery in ejectment is not only admissible in evidence in favor of the party put in possession under it, but is conclusive between the same parties, and their privies, on the same title, as to the question of possession and title.—Shumake v. Nelms, 25 Ala. 126; Howard v. Kennedy, 4 Ala. 592; Van Allen v. Rogers, 1 Amer. Dec. 113; note, 116; 2 Greenl. Ev. § 333; Camp v. Forrest, 13 Ala. 114; 6 Amer. & Eng. Encyc. Law, 245; Chirac v. Reinecker, 2 Pet. U. S. 613, 622; Equator Co. v. Hall, 106 U. S. 86; Caperton v. Schmidt, 85 Amer. Dec. 187, note, 208.

The judgment recovered in the ejectment suit involved the title and right o£ possession of the parties to the present suit, to the same lands upon which the crops in dispute were at the time growing, and was conclusive on collateral attack as to the title of the lands, and, therefore, of the. growing crops which were a part of the freehold at the time of recovery.

3. The plat of “Fraction 12,” in dispute, proposed to be introduced by the plaintiff, was ruled out by the court as inadmissible. This was alleged to be the “original plat” of this land, given to the plaintiff as such by the Secretary of State. No legal proof was made on this point, however, and the paper is not before us for inspection. We can not say that the trial court erred in excluding it from the jury.

4-5. We do not judicially know that the judgment in ejectment for the recovery of “Fraction 12, a part of the S. E. and [of] N. E. ¿, sec. 16, T. 4, R. 4, containing 34.75-100 acres,” was void for uncertainty, on the ground that no such land exists. The record shows that it was surveyed by the county surveyor, and was found prima facie correct. Moreover, the objection taken to the admission of this judgment, and other parts of the record accompanying it, was so general and undefined in its character, that it was competent for the court to ignore it; no ground of objection whatever being particularized.—Dryer v. Lewis, 57 Ala. 551; March v. England, 65 Ala. 275; Steele v. Tutwiler, 57 Ala. 113.

The other evidence to which objection was taken by appellant, was admissible to explain the extent of defendant’s possession, and to identify the lands on which the crops in dispute were grown.

6. The court did not err in refusing to admit in evidence the verdict and judgment in the criminal prosecution instituted by Killebrew against the plaintiff, Carlisle, for removing the crops, in which the latter was acquitted by the presiding magistrate. A verdict and judgment in a criminal case is not generally evidence of the fact upon which the judgment was founded, in a civil proceeding. — 1 Starkie on Ev. (Sharswood), *363-365.

7. So, the judgment of the magistrate showing a recov^ ery of damages by Carlisle against Killebrew, in the action for malicious prosecution, based on the prosecution last referred to, is not shown to involve the determination of any fact relevant to the present issues. The judgment of acquittal, moreover, in the criminal case, upon which the case of malicious prosecution was based, being inadmissible as above stated, the latter proceeding must also- be excluded.

"We find no error in the record, and the judgment is affirmed.