Scott v. Colson

ANDERSON, J. There was proof that Isaac Clarke was in possession of the land at the time he conveyed it to his daughter, Jerusha Clarke, who subsequently married James M. Gullatt. She died leaving one child, the mother of the plaintiffs, and her husband, James M. Gullatt, who died June 14, 1906. The deed from Clarke to his daughter was recorded July 26, 1838. The plaintiff’s therefore made out a prima, facie case. The defendants relied upon a title acquired through Gullatt, who had but a life estate in the land and did not hold the same adversely to the remaindermen, his daughter and her children (these plaintiffs), after her death. The conveyance from the Decatur Bank to Gullatt did not increase his estate; for even if he did not discharge the claim recited therein for the benefit of the remainder-men, he did not thereby acquire a title superior to the heirs of his wife, as there is no proof that the bank had any title from Isaac Clarke superior to that conveyed by him to his daughter in 1838. Nor could the defendants hold adversely to the plaintiffs, they holding under the life tenant, until after the death of said life tenant. The plaintiffs became entitled to the land upon the death of the life tenant, and no sooner, which was less than a year before the trial; and the trial court err^i in charging the jury to assess damages fo1’ one year. Under the common law, only nominal damages were recoverable in actions of ejectment, but the rule has been modified by our statute, so as to' authorize a recovery of mesne profits. “The statute by its own terms limits the damages to what is known as ‘mesne profits;’ compen [453] sation for use and occupation” — meaning damages from the commencement of the tortious withholding to the time of the verdict (section 1555, Civ. Code 1896; Prestwood v. Watson, 111 Ala. 610, 20 South. 601; Morris v. Beebe, 54 Ala. 300); the exception to the rule being the cases covered by section 1535 and 1540 of the Code of 1896, where damages cannot be assessed for over one year, regardless of the length of the holding (Turnipseed v. Fitzpatrick, 75 Ala. 304). The general rule for the measure of damages, when authorized, in actions of ejectment, would seem to be the fair rental value of the property during the period of the tortious holding. Waverlee on Ejectment, § 540. There was no tortious holding of the land prior to the death of the life tenant, and the trial court erred in authorizing the jury to assess damages beyond the date of the death of the life tenant. The trial court did not err in refusing' the charges requested by the defendant. If defendants had a growing crop on the land, they were protected by section 1552, Civ. Code 1896, which expressly provides for the retention of land to gather a growing crop. For the error pointed out, the judgment is reversed, and the cause is remanded. Reversed and remanded. Tyson, C. J. and Dowdell and McClellan, JJ., concur.