Hughes v. Rose

■SIMPSON, J. This is a statutory action of ejectment, by the appellant against the appellee, in which the court gave the general affirmative charge in favor of the defendant. The first assignment of error insisted on is to the action of the court in overruling the objections of the plaintiff to the introduction of the deed executed by Mary J. Anderson to T. L. Rose, the defendant. The first objection offered to the admission of said deed was that “said deed shows that the said Mary Anderson was a married woman.” It will be noticed that it is not asserted that she was a married woman, thus calling for proof as to the fact; but the objection is based entirely on the recital in the deed. While it is true that the parties to the deed are bound by the recitals therein, and others are not (Wood v. Lake, 62 Ala. 489, 490; Naugher v. Sparks, 110 Ala. 572, 576, 18 South. 45), yet the recitals do not show whether the grantor was a resident or nonresident, and the requirement for the husband to join in the wife’s conveyance does not apply to nonresidents.- — Code 1907, § 4494; High v. Whitfield, 130 Ala. 444, 30 South. 449; Collier v. Alexander, 142 Ala. 422, 38 South. 244. [371] The other objection, that the deed was dated after the commencement of this suit, is untenable, as, in the action of ejectment, “not gnilty” is the only proper plea; and any matter of defense may be set up thereunder.—Etowah Mining Co. v. Doe ex dem. Carlisle, 127 Ala. 663, 668, 29 South. 7; Richardson v. Stephens, 114 Ala. 238, 242, 21 South. 349; Cooley v. U. S. Savings & Loan Co., 144 Ala. 538, 540, 39 South. 515. There was no error in overruling said objection. The proof was without conflict that Mary Anderson is the legal heir of George Mims. There was no evidence which would justify the jury in finding that the plaintiff, or her mother, was in open, notorious, and continuous adverse possession of the lot in question for 10 years. The evidence adduced was wanting in description of the character of the possession, and as to its continuousness. The judgment of the court is affirmed. Affirmed. Dowdell, C. J. and McClellan and Mayfield, JJ., concur.