McIntosh v. Windham

56 So. 1020, 174 Ala. 145, 1911 Ala. LEXIS 382

• Court: Supreme Court of Alabama
• Decided: November 30, 1911
• Status: Published

Opinion

SIMPSON, J.

This is a statutory action of ejectment, by the appellee against the appellant. The plaintiff proved a chain of conveyances from the government down to himself, starting with a patent from the United States to Joseph B. HolloAvay, dated June 10, 1892, a deed from said Holloway to Snellgrove & Law, dated January 8, 1906, etc.

The defendant introduced evidence for the purpose of shoAving that, in the spring of 1904, said J. B. Hollo-Avay signed and acknowledged a deed, conveying the land in question to Dan McIntosh, Avhich deed Avas never delivered to said McIntosh, but Avas delivered to one Bastón, to be delivered to said McIntosh, and subsequently was returned to HolloAvay, Avho stated that he would deliver it to McIntosh.

The claim of the defendant is that the delivery to Bastón Avas in accordance Avith the instructions of McIntosh, and that the delivery to Bastón was really a delivery to McIntosh, although the deed never actually came into the hands of McIntosh.

The evidence is in conflict as to Avhether there Avere any numbers of land in the deed Avhich Avas acknoAvledged before, and left Avith Bastón, and J. B. HolloAvay, the grantor, testified that it Avas not intended to be delivered as a deed, at all, but Avas signed only to enaole Dan McIntosh to sell some timber for him, and that the $40 subsequently paid to him Avas merely for the timber which had been sold for him, although he told Dan McIntosh that, if he Avanted the land for $100, he could haAe it, and that said McIntosh afterAvards told him that he did not Avish to take the land at all.

There is a conflict in the testimony as to Avhether any one was in possession of the land at the time the deed was made to the plaintiff, also as to Avhether, if McIntosh Avas in possession, he was holding it adversely, or as tenant of his brother, who states that he never claimed to own the land, but only told his brother he could occupy it.

There was no error in the refusal to give charge 2, requested by the defendant. It does not hypothesize that the plaintiff had any notice of the deed which purports to have been made to Dan McIntosh, and, as the evidence is in- conflict as to whether he was in possession at the time the deed was made to the plaintiff, it cannot he said to be a matter of law that the plaintiff had notice by possession.

The court erred in refusing to give charge 3. Under the interpretation by this court, of section 3839, Code of 1907 (Grant v. Nations, 172 Ala. 83, 55 South. 310), said charge states the law, as applied to the facts of this case; the conveyance in question having been made before the enactment of said section.

Referring to the third and fourth assignments.of error, there was no error in overruling the objection to the question and the motion to exclude the answer as to tlie sale of the timber and the disposition of the proceeds, as it tended to corroborate the testimony of Joe Holloway that the timber was sold for him, under the agreement testified to by him.

There was no error in refusing to give charge 1, requested by the defendant. The description in the complaint is sufficiently definite to warrant a recovery. It gives the length and the width of the strip, locates it as beginning at the S. E. corner of said N. W. % of N. W. Vi, and further identifies it as the strip “now being cultivated by Walter Clemons.”

For the error noted, the judgment .of the court is reversed, and the cause remanded.

Reversed and remanded.

•All the Justices concur, save Dowdell, C. J., not sitting.