Washam v. Beaty

This is an action of ejectment brought by the appellee, as purchaser of a piece of land conveyed to him by Washam, deceased, and under whom the defendants claim title and that the conveyance to the plaintiff was invalid for the reason that the grantor was a married man, the land was his homestead, and, while the wife executed and acknowledged the deed in conformity with the statute, she was at the time insane and not legally responsible. In the case of Beaty v. Washam, 205 Ala. 92,87 So. 337, this court held that, if the wife was insane at the time she executed the deed conveying the homestead, the said conveyance was void. So the sole question involved and submitted to the jury upon the trial from which this appeal was taken was the sanity vel non of Mrs. Washam when she executed the deed to the appellee Beaty, and there was judgment for the plaintiff.

The appellants contend for error in the refusal of the general charge requested by them for the reason that upon the former trial, and in which the judgment was affirmed, the jury found that the deed was invalid because of the insanity of the wife and that said finding is conclusive as to this issue in this, the second action of ejectment. This contention is unsound, as said finding in the first action is not res adjudicata as to this or any other issue there determined in the second action. Williamson v. Mayer, 117 Ala. 253, 23 So. 3.

There was no error in refusing charge 2, requested by the defendants. It is elliptical, as it omits the word "satisfied." Moreover, the fact of previous insanity is not presumed to exist when the deed was executed unless it was shown to be of a permanent nature as distinguished from temporary or spasmodic insanity. Pritchard v. Fowler, 171 Ala. 662, 55 So. 147.

There was no error in refusing defendants' requested charge B. If not otherwise faulty, it is argumentative.

While charge 2, given at the request of the plaintiff, could have been well refused, it is a copy of one given in the case of Dominick v. Randolph, 124 Ala. 557, 27 So. 481, wherein the court held that, while it was misleading; it was the privilege and duty of the appellant to have asked an explanatory charge and that the giving of same was not reversible error.

There was no error in giving the plaintiff's requested charge 3. It states the law. Pritchard v. Fowler, 171 Ala. 662,55 So. 147.

There was no error in giving plaintiff's charge 5, though it could have been refused without error for the use of the word "preponderance." Green v. Sou. States Co., 163 Ala. 511,50 So. 917, and cases there cited.

There was no reversible error in sustaining the plaintiff's objections to the question of defendants to the witnesses Abernathy and Miller, as these witnesses were fully examined on direct and cross as to the condition, conduct, and symptoms of Mrs. Washam, and, in effect, answered the questions to which objections were sustained.

There was no error in permitting the plaintiff to ask Mrs. W. I. Washam on cross-examination if she and her husband did not take a deed from Mrs. Washam after they moved back. She had testified that Mrs. Washam, Sr., was insane, and the fact that she and her husband dealt with her in a business way at that time would be a circumstance affecting her testimony, the probative force of the circumstance being a question for the jury. Hughes v. Bullen, 209 Ala. 134, 95 So. 379.

We think that the witness Dobson testified to such a long and intimate acquaintance with Mrs. Washam as to permit him to give his opinion, though a nonexpert, as to her sanity. Pritchard v. Fowler, supra.

There is no merit in the other assignments of error as to the rulings upon the evidence.

The judgment of the circuit court is affirmed.

Affirmed.

All the Justices concur, except SAYRE and SOMERVILLE, JJ., who dissent.