Payne v. Crawford , 102 Ala. 387 ( 1893 )

HABALSON, J.

This suit is a statutory real action, by Mary A. Crawford against L. W. Payne, to recover two strips of land lying between their several possessions, and the contention is whether the strip belongs to the plaintiff or defendant. Neither asserted claim, save as they severally contended, a proper survey andmeasurment would ‘show the rightfulness of their respective claims.

I. The pleadings, so far as the assignments of error make it necessary to notice them, were a special plea, numbered 1, by defendant, in which he set up an agreement, entered into by the plaintiff and defendant, to arbitrate their differences, and that certain persons chosen thereunder made an award as arbitrators, by which 'the plaintiff was bound, and therefore estopped to bring this suit.

The second plea disclaimed possession of all the lands not embraced in said award, but as to all described in the award, the defendant pleaded not guilty.

Plaintiff filed many replications to plea No. 1, and among them, the ones numbered 4, 5, 6 and 10, which in substance set up, — the 4th and 5th, that the defendant was estopped to plead said arbitration and award as a defense, because after said award had been made, the defendant and the plaintiff mutually agreed in writing to do away with the same, and to submit the matter in controversy between them to the arbitration of other persons different from those who rendered the first award, and bound themselves to abide by the lines as established “by said party or parties,” that the plaintiff was ready and willing and offered to carry out said second agreement to arbitrate, but the defendant refused to do so ; and the 6th and 10 th, that the arbitration and award first had was not binding on her, because it was a proceeding instituted and conducted under and according to the rules of the church to which the parties belonged, which required members to settle their differences in this manner, rather than go to law with each other, and was no more than a church award, and not binding on her.

To these replications, defendant filed demurrers, on many grounds, which demurrers were overruled, which ruling constitutes the basis for the first assignment of error. This ruling as to the 6th and 10th replications was contrary to the decision of this court in this case, when here on a former appeal. We then said: “The award rendered in this case if otherwise valid, would be an estoppel upon plaintiff’s right to maintain this action. The parties litigant, however, did not permit the case to remain as the award had left it. They entered into a subsequent written agreement, by which they again agreed to submit the matter in dispute to other and different arbitrators. True, those arbitrators never acted; but that is not the test. By the agreement they set the former award aside, and bound themselves to be governed by one to be subsequently made. Like the grant of a new trial at law, it did away with the former finding, and left the issue still open. — Burnside v. Potts, 23 Ill. 411.” — Payne v. Crawford, 97 Ala. 604. But, it also appears, as well, that the demurrers to the 4th and 5th replications were properly overruled.

II. It is insisted, however, that the demurrer to the 6th and 10th, might well have been overruled, because it was general and did not specify any facts on which it was based. The ground as stated was, “because said replications show no facts that would relieve the plaintiff of the binding effect of the award set up in defendant’s plea, No. 1.” It must be admitted, as claimed, that this was a mere general demurrer to the replications. — Baker v. Boon, 100 Ala. 622; Cook v. Rome Brick Co. 98 Ala. 409 Evitt v. Lowery Baking Co., 96 Ala. 381; Mobile & M. R. R. Co. v. Crenshaw, 65 Ala. 567; Brewer v. Watson, 65 Ala. 88; Code, § 2690.

The judgment entry recites, that issue was joined on the pleadings. As the demurrers to the replications of the plaintiff were overruled, it appears, therefore, that issue was joined on them. The bill of exceptions recites, that “the arbitration and award, set up in defendant’s pleas were proven” by defendant, and, as we presume, were read in evidence by him. It also recites that {¡he plaintiff, on proof of signatures, offered in evidence the second agreement to arbitrate. The defendant objected to the introduction of this paper, on many grounds, but, it was properly admitted under the 4th replication. We adhere to our former ruling as to the admissibility and effect of this second agreement. The course the trial took, therefore, and the introduction of these several papers, show conclusively, that the defendant had the benefit of all the evidence he could have had if the demurrers to the 6th and 10th replications had been sustained. So, if conceded, that the court erred in overruling the demurrer to the 6th and 10th replications, it was error without injury.

III. The question propounded to the witness Jones and his answer, against the objection of defendant, was patently illegal and irrelevant for any purpose. — 1 Greenl. Ev., §§ 449, 455.

IV. The deed from Snead to A. J. Crawford, from whom plaintiff derived title, was properly adinitted. The objections to its introduction were, that the deed did not describe the land in controversy, was too uncertain and indefinite. There was evidence, however, as the bill of exceptions states, tending to show that the description in said deed covered the land sued for. And, if there was uncertainty in the description, it was susceptible of being made plain by parol testimony.— Saltonstall v. Riley, 28 Ala. 164; Clements v. Pearce, 63 Ala. 284; Chadwick v. Carson, 78 Ala. 119.

V. It may be stated as being well settled, that a party in possession of land, may make declarations explanatory of his possession, and either claim or disclaim ownership of the property, and such declarations may be given in evidence, in an issue of disputed ownership, no matter who may be the parties to the suit. Possession being the principal fact, such declarations are admissible as a part of the rex gestae of the possession itself. Humes v. O’Bryan, 74 Ala. 64; Daffron v. Crump, 69 Ala. 77; 1 Brick. Dig., 843, §§ 668-9; 1 Greenl. Ev., § 109. In Hunnicutt v. Peyton, 102 U. S. 364, Mr. Justice Strong states the general rule of American courts in the matter pf the determination of disputed boundaries to be, that the declarations of the owner of land, since deceased, who, it is shown, had knowledge of the facts he stated— made while on the land or in possession of it, in respect to its boundaries — are admissible in evidence. — 1 Greenl. Ev., § 109, n. 2 and b., and authorities cited. While this rule is eminently true in case of deceased owners of land, in locating the boundaries of their possessions, it is by no means confined to that class, but is as applicable to living persons as well, where no intent to misrepresent appears. — Authorities supra.

VI. It vrould seem, therefore, that there was no error in admitting the evidence of Mrs. Crawford in respect to the declarations of her deceased husband, made while on the land, as touching the boundaries of his land, nor in the admission of the evidence of Jack Crawford, of the declaration of his father, the husband of plaintiff, while in possession of the land, as to where the southwest corner of the Crawford place was. The evidence of the surveyor, Torrence, also, rests upon the same principle. His survey appears to have been correct, starting from the corner fixed by plaintiff’s husband, while in possession, as deposed to by Jack Crawford.

VII. The question propounded to the plaintiff by her counsel, while she was testifying in her own behalf, “If she had ever asked defendant, if he had a deed to the land in controversy, and if so, to show it to witness?” and her answer, that defendant said he had a deed, .but refused to show it, were improper. Defendant was under no obligation to disclose his evidence to plaintiff, and keeping his own counsel was not the suppression of evidence the plaintiff was entitled to. If he refused to produce the deed, on notice, she had a right to prove its contents, or if she - could not prove them, and the evidence was important to her, she had the right to require a discovery of it from him. — Edmonstone v. Hartshorn, 19 N. Y. Ct. App. 9.

VIII. It ought to be stated, as applicable to some of the instructions requested, that a plaintiff in ejectment, without proof of documentary' title, may recover by showing prior possession under claim of title, or by the exercise of acts of ownership; but, in such case, if the testimony fails to show such prior possession, he has no right to recover, even against a naked trespasser, or one who does not show a better title. — Mills v. Clayton, 73 Ala. 359; Dothard v. Denson, 72 Ala. 541.

IX. Charge No. 1 given for plaintiff is erroneous. The deed from Snead to Crawford does not, on its face, show that the lines between 28 and 29 is the true line of Crawford. Where that line is, was the matter of contention between the parties, and about which there was conflicting evidence. The interpretation of the deed was a matter for'the court. Charges 2 and 16 are abstract and argumentative. There is no evidence that Payne’s wire fence, as hypothesized in the 2d charge, began at the southern extremity of a grave-yard, nor, where, on the land in controversy, said grave-yard is located, and its boundaries. The words, "turned over,” as employed in the 16th charge, was not necessarily an act of ownership. One may turn over something he does not own or claim to own. The giving of abstract and argumentative charges is not reversible error, unless it plainly appears injury resulted, but they should not be given.

Nos. 3, 5, 11 and 12 were erroneous. They each ignore any reference to the title of defendant, which there was evidence tending to establish; and as to the 12th, it may be further added, that defendant did not set up the defense of ten years adverse possession.

Charge 4 is erroneous, in that it is not predicated upon a hypothesis of facts showing plaintiff’s right to recover.

Charge 8 is erroneous in that, if said deed did not show on its face that said lands were included in it, it was susceptible of being aided and made plain by parol evidence ; and the charge ignores the evidence tending to show that the land was, in fact, included in said deed, and belonged to Payne'.

The 10th charge is abstract and argumentative, and .was calculated to mislead. As we have stated, Payne owed plaintiff no duty to show her his deed, or to introduce it in evidence.

The 14th charge was abstract and calculated to confuse and mislead the jury. There is no proof that Payne set up or relied on ten years adverse possession as a defense.

We would not reverse, however, for the giving of these abstract charges.

The 15th charge should not have been given. It fails to postulate that the deed referred to, under which plaintiff claims, covers the land in controversy.

The remaining charges given for plaintiff — Nos. 7, 9 and 13 — when construed in the light of the evidence in the case, are free from error, as was the general charge of the court excepted to.

The charge requested by defendant was properly refused. — East v. Pace, 57 Ala. 521.

Reversed and remanded.