Benjamin v. Slaughter , 151 Ala. 445 ( 1907 )

DENSON, J.

The Stockton Lumber Company, a corporation, and H. J. Hunt, Avere equal owners as tenants in common of several tracts of land located in BaldAvin and- Clarke counties, and including the tract iiiA'olved in this suit. The corporation bargained and sold its undivided half interest to TV. H. Slaughter, AAdio died before a deed was executed by the corporation to him. Letters of administration Avere issued on Slaughter’s estate to H. TV. and Archer \V. 'Slaughter, sons of the deceased. After the death of Slaughter, on the 18th day of February, 1899, an agreement in Avriting Avas entered into by the corporation, Hunt, and the administrators of Slaughter, by AAdiich a division of the lands betAveen the said administrators and Hunt Avas made; and in pursuance of the agreement Hunt, on the 29th of March, 1899, executed a deed to the administtrators to his undivided half interest in the lands that under the agreement fell to Slaughter, including the tract involved in the present suit. The lumber company had previous to the division executed its deed to the heirs at law of Slaughter (naming them), conveying its undivided half interest to them in all the lands jointly owned by it and Hunt. On the 9th day of June, 1899, the heirs at law of W. H. Slaughter (except the plaintiffs), including W. H. Slaugther, executed to the plaintiffs a deed conveying to them an undivided half interest in all the lands that were originally owned by the lumber company and Hunt; the deed following the description as given in the previous deed made by the company to the heirs. This deed, as is shown by its recitals, was made in furtherance of and to carry out an agreement made among all the heirs of W. H. Slaughter (including H. W. Slaughter) on the 23d day of February, 1897, by the terms of which certain property, including the lands in controversy, was to be conveyed to Archer W. and Dupree Slaughter, the plaintiffs in this suit. The testimony shows that Archer W. and Dupree, the grantees in the deed and the plaintiffs in this suit, after the execution of the deed went into possession of the lands in controversy, and held them in their own right and exclusive of all the other heirs of the deceased (Slaughter), and were so in possession and holding at the time of the alleged trespass. In this state of the case, the title of the plaintiffs to the locus in quo is good as to all persons who are strangers to the title, notwithstanding plaintiffs may not have shown a perfect paper title from the heirs.-r-2 Waterman on Trespass, p. 382.

The evidence shows that at the time Hunt executed the deed to Slaughter’s administrators there was an outstanding mortgage, made by Hunt to B. F. FitzPatrick & Co., covering Hunt’s undivided half interest in the tract of land involved here; and Hunt agreed, when the partition ivas made of the lands between'him aiid the Slaughters, that, if the tract covered ' by the mortgage should ever be subjected to the jiaymeht of- the mortgage, he would “make it good.” He agreed to pay the mortgage. The mortgage was transferred by Fitzpatrick & Co. to the People’s Bank, at Mobile, and the bank foreclosed the mortgage in the chancery court of Mobile county, and at the sale H. W. Slaughter bought the land. After H. W. Slaughter bought at the sale, Joe Hunt, a son of H. J. Hunt, redeemed the land from H. W. Slaughter (after the suit was brought). H. W. Slaughter then made a ded to Joe Hunt, and Joe Hunt made a deed to plaintiffs about a year before the trial of the cause in the court below. When the foreclosure sale was made does not definitely appear in the evidence; but at the time of the sale plaintiffs were in possession of the land, claiming it as their own. H.. W. Slaughter testified that plaintiffs were in possession when he bought at the sale, and that “it was all understood with us when I bid it in.” It appears from the-evidence that plaintiffs at the commencement of the. suit were in the rightful actual possession of the lands, claiming them as their own as against all persons except possibly the transferees of the mortgage; and with it the defendant did not pretend to connect himself. Furthermore, if H. ¥7. Slaughter acquired any interest by his purchase, that interest passed out of him by his deed to Hunt, and passed back to plaintiff by Hunt’s deed made to them a year before the trial of the cause. In this state of the case, the court did not err in its refusal to give the charges requested by the defendant. — L. & N. R. R. Co. v. Hall, 131 Ala. 161, 32 South. 603

If the plea to which the demurrer was sustained presented a good defense, it affirmatively appears that the same matter was presented under the plea of the general issue. Therefore no injury was suffered by the defendant from the judgment sustaining the demurrer to the special plea. There is no error in the record and the judgment is affirmed.

Affirmed.

Tyson, C. J., and Haralson and Dowdell, JJ., concur.