78 Ala. 134 | Ala. | 1884
When this case was last before us, 75 Ala. 241, we considered the admissibility of the documentary evi
It is contended for appellant, that in the deed of Caldwell to Yeatman, bearing date February 22d, 1839, only an undefined, partial interest is conveyed, of what is known as the “Isaac Jamison lot.” That lot is described in the Aciden (sheriff) deed, as “part of lot seventeen, fronting on Gallatin street fifty feet, extending eastwardly seventy-three feet, as the property of Isaac Jamison.” This property passed through several intermediate conveyances, with substantially the same description, until the title was vested in Caldwell, by deed fi-orn Horton, bearing date August, 1838. The description in the deed from Caldwell to Yeatman is, “part of lot No. 17 in the original plan of said town, fronting Gallatin street fifty feet, extending eastwardly seventy-three feet, known as the property formerly owned by Isaac Jamison.” We are at a loss to perceive on what principle this description is less comprehensive than that found in the other deeds. All bear evidence that they do not convey all of lot seventeen, but only a part of it. All convey a lot, part of lot seventeen, fronting on Gallatin street fifty feet, and running back seventy-three feet. The lot was sold, and first conveyed as the property of Isaac Jamison, and it is uniformly described as the “Isaac Jamison lot,” or the lot formerly owned by Isaac Jamison. We hold the deed from Caldwell to Yeatman conveyed all the interest the former had acquired from Horton, or Horton and Bobinson.
In the deed from Yeatman to Turner, trustee, bearing date February 23d, 1839, we find introduced other lots, which are conveyed to said Turner in connection with the “Bell Tavern property.” The lots introduced are the following: “One, the lot purchased of Wm. McKay, Jr., by the said Phillips, on which is situated the new brick building; the other, the lot bought by said Phillips of D. B. Turner, in the rear of the same, on which is erected a frame stable.” Turner conveyed to Wood the “Bell tavern property,” and with it, and as part of it, the two lots last above described, and the part of lot 17 conveyed by Aciden, sheriff. It also conveyed another piece or parcel of lot, apparently in lot 18. The lot described as having the new brick house on it, is also apparently in lot 18. It is said in this deed that the property conveyed “embraces, and is intended to embrace, the establishment in the town of Huntsville known as the Bell Tavern.” Now, the Bell Tavern was situated on a square, 295 feet on each side, bounded on all sides bystreets: Glinton street on the north, Jefferson street on the east, Bandolph street on the south, and Gallatin street on the west. This square was divided into four lots, each 147^-
The deeds, however, do not fix and define the land sued for as being the premises conveyed, without the aid of extrinsic proof; and it would'seem that the proof, by which the Jamison lot is sought to be located, is entirely different from that which it is claimed identifies the small lot in its rear. Eirst, as to the Jamison lot — fifty feet front on Gallatin street, running back seventy-three feet. The deeds describe this, as in lot 17. There is satisfactory, documentary proof that the northern sixty-seven feet of lot 17, extending from the north-west corner south, was sold and conveyed by Jamison before Sheriff Acklen made his sale; and the title to that property has come down by regular conveyance to Bernstein, the defendant. There is, next, a lot of twenty-five feet front on Gallatin street, to which Jamison never had' any title or claim. On this lot the little brick house stood, and the deed to Jamison, which conveyed lot 17, excepted this twenty-five feet from its operation. Plaintiffs can assert no claim to either of these parcels. Next to the little brick house lot is the seven feet alley, mentioned in the conveyances. These several parcels cover about ninety-nine feet of the front of lot 17 on Gallatin street, and leave only forty-eight or forty-nine feet of the lot’s front on Gallatin street. These facts being shown by documentary evidence, it is demonstrated, by a process of exclusion, that this is the property
The location of the rear part — some forty feet — of the lot sued for, is not defined nor ascertained by the documentary evidence. It requires extrinsic proof, oral or otherwise, to show that it comes within the descriptive clauses of some one of the deeds, in a chain of title which ultimately merged in the Bell Tavern property. For illustration, we may mention, that it would be sufficient' identification to prove that it is the lot on which the frame stable stood ; or that it is embraced within the McKay, Connally or Phillips sales. Or it would be sufficient to raise a prima facie case of right against one without title, to show the premises were once occupied as part of the “Bell Tavern property,” either as part of the stable, or as cow-lot, or in any other way, connected with the hotel, accompanied with such acts as indicate claim of ownership. The sufficiency of such testimony, however, would present an issue of fact, upon which the jury would have to pronounce. It can not be affirmed, as matter of'law, nor predicated of the mere documentary evidence, that plaintiffs have shown title to the rear forty feet of the lot in controversy. A charge, as to this part of the premises, can not be legally given, without hypothesis. If, however, the jury find from the evidence, either that the said forty feet extension is embraced in either one of the said deeds, or that it had been previously possessed as part of the “Bell Tavern property,” accompanied with acts indicating claim of ownership, this will make good the prima facie right of plaintiffs, and devolve on the defendant the duty and necessity of making good one of his defenses.
In that part of the general charge first excepted to, the court committed no error, of which appellant can complain. As we have heretofore shown, the deed from Caldwell to Yeatman conveys entirely that part of lot seventeen which had come from Acklen’s deed down to him, and the court should have so instructed the jury. The finding of the jury being what the court itself should have announced, the appellant is not injured by the-error of the court, in submitting the question to the jury. — 1 Brick. Big. 780, § 96; Jones v. Pullen, 66 Ala. 806.
In the second paragraph of the general charge excepted to, the court committed an error. It can not be affirmed, as mat
The charge given at the instance of plaintiffs is in accordance with our previous rulings, and is free from error.
The first of the written charges asked by defendant, as shown in this record, is obscure, and was rightly refused on that account. But we do not think it asserts a correct legal proposition. The mere fact that the owner of real estate “has not had possession of it, claiming title to it,” for more than twenty years, in the absence of any adversary claim or possession; does not work a forfeiture of the title.
The next charge asked asserts, as matter of judicial construction, that the part of the lot which is more than seventy-three feet from Gallatin street, is not embraced in any of the deeds, until the conveyance was made by the marshal to Walker. This was rightly refused. There was, at least, some testimony tending to show the contrary ; and the plaintiffs had the right to have it considered by the jury.
The remaining two charges asked were rightly refused. They are based on an erroneous construction of Caldwell’s deed to Kinkle, as we have shown above.
All other questions are disposed of by our rulings on former appeals in this case. — 60 Ala. 582 ; 71 Ala. 260 ; 72 Ala. 546; 75 Ala. 241.
Reversed and remanded.
