Bynum v. Gold

McCLELLAN, J.

— “Not guilty” is the plea which presents the genei’al issue in ejectment and in the statutory substitute for that action The only cases to which this plea is-made appropriate by section 2675 of the Code are actions for defamation or for injuries to the person, or to real or personal property. That section does not, therefore, apply to actions of ejectment or the statutory action for the recovery of land, a fact which appears to have been entirely overlooked by this court in Slaughter v. Doe ex dem. Swift, Murphy & Co., 67 Ala. 494.

But section 2698 of the Code has special reference to the statutory action in the nature of ejectment in respect of what is the genei*al issue and the effect of pleading it. It provides : ‘ ‘The general issue in an action in the natui-e of an action of ejectment is ‘not guilty,’ and under it the defendant may give in evidence the same matters which may be given in evidence under such plea in an action of ejectment; the general issue is an admission that the defendant is in possession of the premises sued for.” And obviously this section, and not 2675, is to be looked to in determining the scope of and the evidence admissible uxider the plea of “not guilty” in the present action prosecuted under the statute for the recovery of land. Such matters are competent in this case, in which only the general issue was pleaded, as ‘ ‘may be given in evidence under such plea in an action of ejectment.” We have no statute defining this issue in ejectment or prescribing what is admissible under it. We have, therefore, to look to the common law to determine its scope ; and to our own decisions upon section 2698 in connectioxx with the common law to ascertain what may or may not be proved where this is the plea in an action under the statute. In the common law action of ejectment, prosecuted noxninally by and against fictitious lessees, the real defendant in interest is only admitted to defend upon entexúng into ‘ ‘the consent rule’ ’ and pleading the general issue. By entering into the rule, the defendant consents to be substituted for the casual ejector, to appear to plaintiff’s suit to receive a declaration in ejectment and to plead not guilty, at the trial to insist upon his title only, to confess at the trial plaintiff’s lease, entry and ouster, and defendant’s possession at commencement of the action, &c. &c. — Tyler on Ejectment, pp. 456 et seq.; 24 Rule Circuit Court Practice, Code, p. 809.

Of the plea of “not guilty’’which the consent rule required to be filed, it is said by Tyler : “It seldom happens by reason of the consent rule, that the defendant, at common law, can plead any other plea than that of the general issue in the action of ejectment. Indeed no other plea in bar can be necessary ; for the reason that the claimant in the action is required to prove his right to the possession of the premises in dispute, under this plea. Consequently, whatever operates as a bar to the plaintiff’s right of possession, must cause him to fail in his proof of title, and entitles the defendant to a verdict upon the general issue. * * * It has been judicially declared in so many words, that in the action of ejectment, as conducted at common law, the plea must be the geheral issue, and that the defendant will not be permitted to plead specially, in bar of this action, matters which in most actions would be required to be set up specially; and consequently that all, such matters may be given in evidence under the plea of the general issue. For exampie, where a party may avail himself of former verdict or decree byway of estoppel, he must plead the same in bar of a suit, or in answer to a plea, or he will be deemed to have waived the estoppel. * * * * * This is the general rule ; but it is held not to apply to actions of ejectment, because a party will not be permitted, in such actions, to plead the matter specially as a bar.” Tyler on Ejectment, p. 464. And to like effect are all recognized texts. — Adams’ Ejectment, 270 et seq.; 2 Selwyn’s Nisi Prius, p. 737; Sedg. & W. Trial of Title, § 473 et seq.; Newell on Ejectment, p. 247 et seq.; 3 Wait’s Actions & Defenses, 96. This court has settled the doctrine that section 2698 of the Code gives to the plea of not guilty in the statutory action the operation of the consent rule and the like plea in the action of ejectment. King v. Kent’s Heirs, 29 Ala. 542 ; Bernstein v. Humes, 60 Ala. 582 ; Clarke v. Clarke, 51 Ala. 498 ; Crosby v. Pridgen, 76 Ala. 385 ; Swann & Billups v. Kidd, 78 Ala. 173. And that section, as we have seen, in terms provides that all matters which could be given in evidence under this plea in ejectment shall be admissible in the statutory action ; and it follows, of course, that the title is put in issue by the plea, (Torrey v. Forbes, 94 Ala. 135) , and that under it the defendant may show any fact going to title, whether in denial and disproof merely of the title relied on by the plaintiff, or in support of a superior and independent right, however acquired, in the defendant.

It is upon the foregoing considerations that, while, as a general proposition, the statute of limitations must be specially pleaded, yet this is not the case in actions for the recovery of land, but in such actions the bar of the statute may be proved under the general issue, since, though a special matter in its nature, it goes not only to defeat the pending action but to establish title in the defendant. — Lay’s Extr. v. Lawson’s Admr., 23 Ala. 377. And so in respect of the defense set up in the case before us ; that the defendants are bona fide purchasers for value without notice of plaintiff’s claim of title : If this defense be sustained, it goes directly to the destruction of the title relied on by the plaintiff as also to support the subsequent conveyance to those under whom defendants entered as carrying good title to the premises. The trial court was manifestly correct in receiving evidence in support of this defense under the general issue.

Taking all the evidence bearing on the question as to whether the defendants’ grantors were bona fide- purchasers for value without notice of the claim now asserted by the plaintiff as true, the conclusion • must be that this defense was made out. It was upon the defendants , after the plaintiff had introduced a deed from their common grantor anterior in date to that under which they claimed, to show that they purchased the land in controversy and paid value for it. This all the evidence adduced went, without conflict or affording diverse inference , to prove. The burden here shifted to the plaintiff, and it was then upon her either to rebut and overcome the evidence of purchase and payment, which she did not attempt to do, or to show that the purchase or payment was made with actual or constructive notice, on part of the purchasers, of the claim upon which she sues, to recover the land .^-Barton v. Barton, 75 Ala. 400. The plaintiff has, in our opinion, failed to discharge this burden, or even to take it up. We do not find in the record any evidence tending to show that the purchasers, Rorex and others, had any notice of the sale and conveyance by H.R. Bynum to the plaintiff, or of any fact or circumstance challenging inquiry, which, if prosecuted, would have led to a knowledge of such conveyance. The only fact brought forward for the purpose of affecting these purchasers with notice was that at the time Rorex and associates purchased from H. R. Bynum, W. J. Porter was in possession, of the land, and plaintiff’s evidence tended to show that he had attorned to and agreed to hold it for her. But it was further shown without controversy that Porter went on the land as H.R. Bynum’s tenant before the deed was executed by the latter to the plaintiff, and continued in possessson until long after the sale and conveyance by H. R. to defendants’ grantors, without any apparent change in the character of his possession with reference to his landlord; that at the time said Bynum sold to Rorex and his associates Porter was represented to be, or kuown to the purchasers as, Bynum’s tenant, and that, as a part of the transaction, Bynum delivered to Rorex notes which Porter had given for rent of the land covering the time of the sale, and that Porter had paid these notes to said purchasers. From the point of view of Rorex and his co-purchasers there was nothing at all suspicious or calculated to excite inquiry in the fact of Porter’s possession, and, knowing, as they did, that he went into possession as the tenant of their grantor and having, in addition to this, other grounds to believe that he held the possession in that capacity alone at the time they purchased and made payments upon the land, that fact — Porter’s possession under the circumstances — is clearly not sufficient to charge them by construction Mth notice of the unrecorded deed which H.R. Bynum had executed to the plaintiff prior to his sale and conveyance to them. — Troy v. Walter Bros., 87 Ala. 233 ; King v. Paulk, 85 Ala. 186; Fitzgerald v. Williamson, 85 Ala. 585 ; McCarthy v. Nicrosi, 72 Ala. 332 ; Watt v. Parsons, 73 Ala. 202.

It follows that if the jury believed the evidence they were bound to find that the defendants stood in the shoes of bona fide purchasers for value of the land without notice of the deed under which plaintiff claims title. So finding, the deed of plaintiff was a nullity as against the subsequent conveyance through which defendant claim title, (Code, §§ 1810, 1811) ; and they were properly instructed to find for the defendants if they believed the evidence.

Affirmed,