78 Ala. 37 | Ala. | 1884
The only objection which seems to have been urged to the recorded copies of the first four deeds, as proved by the records of the Probate Court, offered in evidence by the plaintiff, was the failure of the plaintiff to show that the original conveyances had been lost or destroyed, or that he had not the custody or control of them. — Code, 1876, § 2154. All of these deeds are shown to have been ancient documents more than thirty years of age — two of them dating as far back as forty and fifty years. The circumstances of the present case furnish no shadow of suspicion that the originals could have been withheld for a sinister purpose. It is shown by the attorney of the plaintiff, who testifies as a witness, that the plaintiff, the plaintiff’s agent and former trustee of the property sued for, and the witness himself had all in good faith made a search for these documents, which seems to have exhausted all proper sources of information, such search including an examination among the private papers of the parties. These facts are not denied in argument. The main point of objection urged is the failure of the plaintiff to be present at the trial, and affirmatively make oath to the fact that he himself did not have the control and custody of the original deeds. This argument is based on the false assumption, that every owner of land is presumed to be in possession of every ancient muniment of his title. The legal presumption, it is true, may be, that the deed of his immediate vendor was delivered to him, and remains in his possession ; but no such presumption obtains as to other muniments of title. The plaintiff’s absence in another county at the time of the trial, the fact that he had aided .in the search made, and the other circumstances of this case, are sufficient to rebut any unfavorable inferences to be drawn from the absence of the plaintiff’s testimony as to the matter in question. The records of these deeds were, in our judgment, properly admitted.
The written instrument bearing date in January, 1848, purporting to be an agreement to convey the lands to Gabriel Moore, was certainly admissible. It was an ancient document over thirty years of age, and .came from the custody of one having an interest in the property, to which it had reference, at least, in part. It is connected, moreover, with other evidence showing a possession under it by the vendee. It, therefore, proves itself, and must be taken as genuine. 1 Greenl. Ev. § 144; Bernstevn v. Humes, 75 Ala. 241; Beall v. Dearing, 7 Ala. 124. Though not attested by witnesses, or conveying the legal title, this instrument showed color of title, The same is true of the deed from Gabriel Moore to
The court did not err in charging the jury, that the ten years of adverse possession, which, under the operation of our statute of limitations,'will mature into a good title, means ten years before the commencement of the suit, and that, in this estimate, the time which elapses after suit brought is not counted or included.
It is equally true, that unbroken continuity of possession is an essential element of such adverse holding, except where it is interrupted by mere intruders, who are evicted by a prompt resort to legal remedies within a reasonable time. — Ladd v. Dubroka, 61 Ala. 25 ; Bell v. Denson, 56 Ala. 444.
If the defendant had no title, acquired either by deed, or by adverse possession for the period of ten years, the possession of the plaintiff, which is shown to have been accompanied by color of title and claim of ownership, would be .sufficient to warrant a recovery against a mere trespasser who had intruded upon the plaintiff’s possession, such trespasser, or one holding under him, being precluded from setting up an outstanding title with which he in no way connects himself.— Wilson v. Glenn, 68 Ala. 383 ; Dothard v. Denson, 72 Ala. 511; Trial of Title to Land (Sedgw. & Wait), §§ 718-720.
The first four charges, and the eleventh charge, given at the request of the plaintiff, in substance only assert the foregoing propositions.
The principles announced in the fifth and sixth charges requested bf the plaintiff are clearly sustained by the past decisions of this court.— The State v. Conner, 69 Ala. 212 ; Tayloe v. Dugger, 66 Ala. 444. And the other charges given at plaintiffs’ request are obviously free from objection.
The action of the court in allowing the charge which was indorsed in writing as “ refused ” to go to the jury, in connection with the other charges that were given, was entirely free from criticism. The statute authorizes all written charges, whether those that are “ given ” or those that are “ refused,” to be taken by the jury with them in their retirement. It is often just as important for the jury„to clearly understand what the law is not as to know what it is. — Code, 1876, § 3109 ; Miller v. Hampton, 37 Ala. 342.
The two charges requested by the defendant were properly refused by the court. The first erroneously assumes, as a proved fact, that Bush and Finley paid rent to Beard on the land in controversy, without submitting to the jury the credibility of the testimony relied on in support of such alleged fact. The second is misleading, if not erroneous, in omitting thq
We find no error in the record, and the judgment must be affirmed.
