Snead v. Patterson , 190 Ala. 43 ( 1914 )

MAYFIELD, J.

The action is one to recover damages for the removal of a house from the lands of the plaintiff.

(1) The original complaint consisted of two counts, one in detinue, for the wrongful detention, and the other in trover, for the wrongful conversion, of the house. The complaint was amended, so that the trial was had on two additional counts, each claiming damages as for injury to the freehold on account of the removal of the house therefrom.

It is insisted by appellant that the addition1 of these last two counts was not allowable, because a departure was thereby wrought. To this we do' not agree. The amendment was allowable under our system of pleading; certainly so under our new statute on the subject (section 5329 of the Code), which provides as follows : “All actions ex delicto may be joined in the same suit, and may be joined with actions ex contractu arising out of the same transaction, or relating to the same subject-matter, and the issues may be determined separately by the jury, and the proper judgment shall be rendered by the court and the costs fairly apportioned.”

All the counts were ex delicto, and, of course, could have been joined originally; and there was no departure in adding the last two counts. While the actions set up in them were real actions, and those in the first two personal ones, they were all based upon the same wrongful act, and related to the same subject-matter and to the same parties, and could therefore be joined under our statutes. Prior to the adoption of the present Code the last two counts probably could not have been joined; but it is certain that they can be under the present Code.

There was really but one cause of action alleged in all the counts, though the form of the action was different. The cause of action upon which all the counts were based was the wrongful removal of a house.from plaintiff’s land. We feel sure the counts were properly joined, and that there was no departure. While these various actions could not be joined in one connt, they could he in different counts, even if they had been separate causes of action. — A. G. S. R. R. Co. v. Shahan, 116 Ala. 302, 22 South. 509; Code, § 5329.

(2) There was evidence tending to support the cause of action alleged in each of the counts on which the trial was had; consequently there was no error in declining to give the affirmative charge for the defendant.

(3, 4) The trial court properly allowed the plaintiff to prove that he was in the possession of the land from which the house was removed. Such evidence was not objectionable as being a conclusion of the witness. There was likewise no error in allowing the witness to testify the house was the plaintiff’s. That was a mere shorthand rendering of the fact. The title to the land was not involved on this trial; that question arose only incidentally and collaterally. Possession of the land was sufficient to maintain the action, under the issues in this case. A witness may testify as to the ownership of. personal property, when the title is involved; and he may do so when the title to the land is not involved, but is merely incidental, as in this case.

(5) There was no error in allowing plaintiff to- introduce in evidence the judgment in an ejectment suit, as to the land from which the house was removed. It tended to show the plaintiff’s right to the possession of the land as against William Golden, through whose land line the defendant clhimed. Golden was a tenant of one Hammett, and the defendant claimed through Hammett, and purchased pending the ejectment suit, so he was privy in title to the defendant in the ejectment suit.

The case of Carlisle v. Killebrew, is conclusive on this subject. It is there said: “In our practice, under the statute, it requires two verdicts and judgments for the defendant to bar further suit by plaintiff in ejectment, or the real action in the nature of ejectment. * * * But, where the question of title arises collaterally, as an action for mesne profits, or otherwise, the record of a recovery in ejectment is not only admissible in evidence in favor of the party put in possession under it but is conclusive between the same parties and their privies on the same title as to the question of possession and title.” — Carlisle v. Killebrew, 89 Ala. 329, 333, 6 South. 756, 6 L. R. A. 617.

(6) If, therefore, there was any error as to the admission of evidence as to the possession of, or title to; the land from which the house was removed, it was cured or rendered harmless by the introduction of this judgment in ejectment, rendered after the defendant removed the house.

These are all the errors insisted upon, and we find none to reverse.

Affirmed.

Anderson, O. J., and McClellan and de Graffenried, JJ., concur.