Butt v. Mastin

143 Ala. 321 | Ala. | 1904

ANDERSON, J.

The trial court properly excluded the certificate of the copy from the tract-book, in the office of the judge of probate of Mobile county. As has been heretofore held by this Court, the original patent, or a certified copy of same, is the highest and best evidence of the grant- from the government to the patentee. S § 1812,1813 of the Code of 1896 ; Hammond v. Blue, 132 Ala. 337.

We do not think the proof of plaintiffs, that they did not have the original, established the predicate for the introduction of the certificate in question. It was not such a certified copy as would bring it within the provision of § 1813 of the Code of 1896. It was in no -sense a certified copy of the original patent; it was simply an extract from the tract-book of Mobile county.

The plaintiffs, failing to trace title back to the government. attempted to relieve themselves from doing so, by establishing title through a common source with the defendant. “Where the parties in an action of ejectment claim title from a common source, the plaintiff in the first instance is only required to show title in himself from the common source.” “It must be understood, however, that this rule applies to cases where the common source of title is either admitted by the defendant or established by the plaintiff’s proof, not in cases- where the defendant denies that he derives his title from the common source with the plaintiff. If the plaintiff relies upon a chain of title starting a't- such common source, the burden is upon him to show the title in the alleged common source.”- — Newell on Ejectments, 579.

The plaintiff attempted to prove thalfc the defendant held title from Hunt, but the deeds introduced for that purpose carried only a portion of fractional section 34 to Hunt, and none of the land in controversy was traced by the deeds beyond Henry Stickney — Item 4.

We think the rule.as to common source applies to the land involved in this suit, and that a claim from a common source is not established by showing that defendant claims title to a part of a subdivision, of which the land in controversy is a part, but is distinct from the portion claimed by the defendant; and it makes no difference that the grantor set up as the common source, acquired title to the entire subdivision, of which the defendant’s-parcel is a part, by a single conveyance. In other words, we do not think that a party, who claims title to only a part of fractional section 34 through Hunt, admits by so doing that Hunt had a title to- the other part of fractional section 34, although Hunt had a deed or patent purporting to convey to him all of it. It might be that the defendant’s grantor purchased the part, to which he thought Hunt had a good title, and did not purchase the balance of the subdivision, for the very reason that he considered Hunt’s claim thereto defective. Could it therefore he pretended, that, in purchasing a part only, the purchaser admitted 'the title of his grantor to the part of the subdivision that he did not purchase? We think not.

Without deciding that plaintiff pursued the proper course to establish a common source, by introducing the abstract, the said abstract did not taire the land involved in the suit back to. Hunt, but only a separate and distinct part of fractional section 34, which is not involved.

The plaintiff, having failed to make out a prima faene case, the action of the trial court in excluding all the evidence was proper.

Affirmed.

MgCeellan, C. J., Tyson and Simpson,. J. J., concurring. .