Campbell v. Bates, 143 Ala. 338

143 Ala. 338 | Ala. | 1904

SIMPSON, J.

This was an action of ejectment by appellee (plaintiff) against appellants (defendants), the judgment being for the plaintiff.

There are numerous assignments of error, hut, as those insisted upon are treated of in appellant’s brief, without reference to their number, we aaíII take them up in the order indicated in said brief.

1. The 3rd assignment relates to the objections -to the introduction of the deed of Sept. 6th, 1855, from Stewart and Avife to William S. Bates, the father of plaintiff, and the first “Mark of suspicion” which is called to the attention of the Court (in the original deed which is before the Court), is that- the word “fourth” after the words “North East” seems to be written over some other word. The alteration seems to be by writing' the ward “fourth” over the word “quarter” (improperly spelled “quater.”) However that may be, it is evidently a mere correction of a word, in the description of the land, and not only does it not Ávork any special benefit to the plaintiff, but no other Avord than quarter or fourth (being-synonymous) can be conceived of as being appropriate at this place, as there is no other subdivision, according to the manner of describing lands in this State, AAdiich would be intelligible. Consequently, we hold that this was not such an evident mark of suspicion as Avould authorize the court to refuse to allow the deed to be-introduced in evidence. Both this matter and the questions Avhether the body of the deed and the signatures Avere in the same handwriting, and also whether the two signatures; and that of the witness, were in the same handwriting, were questions for the jury to consider, with the aid of expert testimony, and other evidence. — Sharpe v. Orme, 61 Ala. 263; Ala. State Land Co. v. Thompson, 104 Ala. 570; Rarisies v. Alston, 5 Ala. 297; Hart v. Sharpton, 124 Ala.

2. While it is true that a deed, not recorded within the time required by statute, is not self proving, yet “A deed thirty years old is admissible, without proof of its execution, and when the only objection to, its admissibility is the failure to prove its execution (or the fact that- it had not been recorded within the time prescribed by statute), the appellate Court will presume in favor of the ruling of the court below, that the paper came from the proper custody.” — Alexander v. Wheeler, 78 Ala. 167.

The so called marks of suspicion, in this case, were not such as went to the date of the instrument, hence the court was not called upon to solve any uncertainty as to its date. — Wisdom v. Reeves, 110 Ala. 418, 434.

3. There was nO' error in the court’s sustaining objections to the introduction of the signatures of George Stewart, to the records of the commissioner’s court, for the purpose of comparing them with the signature of the deed. — Bishop v. State, 30 Ala. 34; Gibson v. Trow-bridge Furniture Co., 96 Ala. 358.

4. There was conflict in the testimony, so- that it would not have been proper for the court to have given the general charge, or either of the other charges requested by defendant, which, though stated in different words, really amounted to the same, in substance, as the general charge.

The plaintiff’s testimony tended to show possession in Stewart and himself, under Stewart from 1844 to 1861, and possession in himself alone, under the Stewart deed, from 1855 to 1861, and, while there was testimony on the part of defendant which tended to contradict the plaintiff’s testimony,' and to show that, during a portion of tliát time, one Little, from whom defendants claim title, was in possession, yet these conflicts emphasize the fact that it was for the jury to take into consideration all of these matters, and determine, under the charge of the court, whether the deed was genuine or not, and whether plaintiff proved such possession thereunder, as color of title, as entitled him to recover against defendants, whose first color of title was in 1897, and who did not prove any possession in themselves at all. -

5. If the possession of Stewart, and the’succeeding possession of the plaintiff under the deed (if it was genuine), amounted,-together, to ten years, then no adverse possession thereafter, under color of title, for a less period than ten years would divest the title from plaintiff, and if plaintiff went into possession under the deed, his possession was of the entire tract described in the deed.— Pittman v. Pittman, 124 Ala. 306; Malone v. Arends, 116 Ala. 19.

6. If Stewart was in possession in 1865, and conveyed tc plaintiff, who went into possession then and retained possession until 1861, he was entitled to recover, as against these defendants, unless their testimony showed subsequent adverse possession for ten years, either in themselves or in some one from whom they have derived title, all these questions, including the question of animus revertendi on tlie part of the plaintiff, were questions for the jury to decide in this case. — McCall v. Doe ex dem. Pryor, 17 Ala. 533; Smith v. Lorillard, 10 Johnson, 339; Crosby v. Pridgen, 76 Ala. 385; Wilson v. Glenn, 68 Ala. 383; Doe ex dem. Wills & Hooper v. Clayton, 73 Ala. 359; Reddick v. Long, 124 Ala. 262.

While it is true that, if plaintiff’s claim was based entirely on a prior possession which had not ripened into title, if the evidence showed that he had abandoned the land, without the animus rev&rtendi, and 'that the defendants had actually taken possession, under color of title, the plaintiff could not recover, yet, in view of the facts that there was evidence from which the jury might have found that plaintiff’s title had become perfect by ten years’ possession in himself and his grantor, and while, although he was away a long time, there was no positive proof on the subject' of animus rev&rtendi, and the further fact that there was no proof of actual possession on the part of defendants, it was not a case for the court to take from the jury. — Cases supra; Gest v. Beaumont, 104 Ala. 347.

7. The questions to the witness, Mrs. Watts, as to wihat she heard Johnnie Little say about losing his deed, were properly excluded. Such testimony as that does not come within the rule allowing proof of statements by k party in possession, explanatory of his possession. —Daffron v. Crump, 69 Ala. 77.

8. The charge marked “C,” requested by defendant, was properly refused, as the entire case did not hang on the one point, as to whether the signature of the witness Boyd to the deed was genuine.

9. The charge marked “B,” requested by defendant, was properly refused. While it is proper for the jury to consider all of the evidence, yet the court cannot, be required to give prominence to one- item of evidence-, by charging the jury that their may consider it. While eiddence referred to might have an important bearing on the question as to whether Stewart had abandoned his possession, it could not show whether or not his possession was bona fide, while he was in actual possession.

10. Charge marked “F,” requested by defendant, was properly refused. If plaintiff went into possession under the deed from Stewart, his possession was not limited to pedis possessio, hut extended to all the land described in the deed. Also-,, it has been shown that, under certain facts, of which there ivas evidence, the plaintiff might be entitled to recover, on his prior possession, under color of title, without- proving adverse possession for ten years.

There is no error in the record, and the- judgment of the court is

Affirmed.

McClellan, C. J., Tyson and Anderson, J.J., con-' marring.