63 So. 1011 | Ala. | 1913
— This is a common-law action of ejectment to recover the possession of 80 acres of land —the E. y2 of the N. E. % of section 24, township 22, range 8 W. — situated in Tuscaloosa county, Ala.
Appellant, plaintiff below, claimed title through one Hardy Clements, who died many years ago. By his will Clements disposed of many thousand acres of land. It is claimed by appellant that the land in controversy passed by that will to Mrs Marlowe, the daughter of the testator, who conveyed to the plaintiff.
The land was not particularly described in the will; but it is claimed that it was included in the general provision which disposed of the testator’s “Home Place”; it being contended that the particular 80 constituted a
Appellee, the defendant below, claimed through a tax deed made by the probate judge of the county to one M. M. Williams on the 20th day of June, 1895, and a mortgage made by M. M. Williams to W. W. Williams, one of the defendants, during the year 1895, a foreclosure deed of this mortgage to one H. B. Ward, made in the year 1904, and a deed,- of practically the same date, by Ward, back to Williams, the mortgagee, and the defendant in this suit.
Objections were interposed by the plaintiff to the introduction of each of these instruments on various grounds, and to the introduction of the mortgage specially, because proof of its proper execution had not been made.
The record shows that the real contest on the trial was whether or not the defendant had acquired title by adverse possession. For this reason, each of the documents was admissible in evidence as color of title. We do not mean to say that they should, or should not, have been admitted for any other purpose; but that, they being admissible for the purpose indicated, it would have been error to exclude them entirely.
It is true that counsel, in some of the objections, state that the documents were offered as muniments of title.
We cannot agree with plaintiff’s counsel that the evidence in this case showed that plaintiff and those under whom it claims title were in the possession of the land at the time defendant and those under whom he claims title claimed to have been in possession, and that the acts of defendant were not the acts of possession of one claiming ownership, but were only those of a reputed trespasser, as to parts of this land. There was abundant evidence from which the jury could find that the possession of the defendant was in good faith, under color of title, and adverse, and that such possession had continued, unbroken, for more than ten years before the bringing of the suit. The record abounds in evidence which, if believed, would support a verdict and judgment for the defendant.
For this reason the general affirmative charge could not properly be given for the plaintiff, and for this same reason the other requested charges of the plaintiff were properly refused.
There was likewise no error in allowing proof that the defendant and. his brother, M. M. Williams, had paid the taxes on this land, nor in allowing the introduction of the receipts therefor.
Finding no error, the judgment is affirmed.
Affirmed.