Steed v. Knowles

STONE, C. J. The testimony recited in this transcript is very voluminous, and very much in conflict. If the plaintiff’s testimony be believed, he shows a clear right to recover an undivided half interest in the land. On the other hand, if the facts attempted to be established by the defendants be the true state of the case, they were entitled to a verdict. It was for the jury to weigh the testimony. Many exceptions were reserved to the introduction of testimony, but we fail to find any error in the court’s ruling in that behalf. Charge 4, given at the instance of the plaintiff, is erroneous. Thomas Bonner, Sr., conveyed an undivided half interest in the lands — the interest sued for — to plaintiff, in August, 1877. Plaintiff founds his right of recovery on the title thus acquired. The theory of his suit is, that at that time, Thomas Bonner, Sr., and Mrs. Steed were equal tenants in common of the lands. The defense is, that Mrs. Steed purchased the lands in 1868 or 1869, that she took exclusive possession in .1871, and ever afterwards held the land, her statutory separate estate. Neither party produced documentary title, either to Thomas Bonner, Sr., or to Mrs. Steed. A deed of gift of an undivided half interest in the lands Lorn Thomas Bonner, Sr., to Mrs. Steed, dated in 1875, was produced from the records of the Probate Court; but Mrs. Steed testified, that it was never delivered to her, and she did not know of it. • Thomas Bonner, Sr., never had actual occupancy of the land. The claim of possession in him, and acts of ownership by him, and later possession by plaintiff, are sought to be established in various ways: By alleged admissions made by Steed, and sometimes by his wife; by letting the premises to rent, and receiving the rent; by letting them to rent, even to Steed himself, and in many other ways. But the testimony is in conflict on all these questions. In this [207] state of the testimony, it is not necessarily a legal truism, that “If the plaintiffs vendor, Bonner, at the time the deed from Bonner to Knowles — plaintiff—was made, was in possession of an undivided half interest in the lands conveyed by it, claiming the same and exercising acts of ownership over it, and if the jury believe further from the evidence that the defendants claimed under a purchase from said Bonner, then the plaintiff is entitled to recover, if the defendants ousted .the plaintiff, or did what was equivalent to an ouster.” -If these facts, hypothesized in this charge, were believed to be true, they tended to show title in Bonner, more or less strong, as they were or were not brought to the knowledge of defendants ; but they did not, as matter of law and necessarily, prove title in him. Charge six, given at the instance of the plaintiff, asserts the correct rule. Charge two, asked by the defendants, is in the following language: “If the jury believe from the evidence that Mrs. Steed is the wife of her co-defendant A. M. Steed, then if the jury believe from the evidence that the half interest here sued for in the land is the separate estate of Mrs. Steed, they must find for the defendant Mrs. Steed.” This charge ought to have been given. It is among the uncontroverted facts in this case, that at the time Mrs. Steed acquired whatever title she has in the lands — at some time between 1868 and 1875 — she was the wife of A. M. Steed, and continued such up to the trial. There is neither proof nor pretense that her estate was equitable, and we must therefore presume it was statutory. DeBardelaben v. Stoudenmire, 82 Ala. 574; Steed v. Knowles, 79 Ala. 446. Being a married woman, and brought into the court as a defendant, to dispossess her of lands ascertained not to be hers, no personal judgment could be rendered against her, nor against her estate, either for the damages or costs. — Johnson v. Ward, 82 Ala. 486; Sayre v. Elyton Land Co., 73 Ala. 85; McCall v. Rogers, 77 Ala. 349; Callen v. Rottenberry, 76 Ala. 169. The court possessed neither power nor machinery for bringing her estate before the court and ordering its condemnation. This case is distinguishable from Haney v. Lundie, 58 Ala. 100; Lee v. Ryall, 68 Ala. 354; Askew v. Renfroe, 81 Ala. 360; Balkum v. Kellum, 83 Ala. 449. Judgment of ouster against her was proper. Beversed and remanded.