Cochran v. Kimbrough

47 So. 709 | Ala. | 1908

ANDERSON, J.

— The defendant, by his plea of “not guilty,” admitted possession of all the land sued for. He also admitted, upon the trial, that the plaintiff had the record title to same, and made no effort to show a divestiture of his said title, except by showing an adverse possession, by himself and preceding owners of the adjacent 40, of a few acres. Certainly the plaintiff was entitled to recover all the land, save these few acres, under any aspect, and was therefore entitled to a verdict, and the trial court would not have been reversed for giving charge 1, requested by the plaintiff . But,' while it would not be reversible error to give said charge, trial courts have the right to refuse charges which are calculated to mislead- the jury. The jury might well have inferred, from this charge, that the plaintiff should recover the land sued for- — all the land, and the trial court was not compelled to give a charge which may have required an explanation to the jury to relieve it of misleading tendencies. The case of Glidden v. Andrews, 10 Ala. 166, is no authority that it was reversible error to refuse the charge in question. The facts are not similar. Moreover, the charge was given in said case, and the' trial court was not reversed for doing so. Neither would the trial court be reversed for having given the charge in question.

It was a question for the jury as to whether or not the plaintiff acquired title to the few acres in dispute under his deed from the estate of McGehee, as there was evidence that the owners of the respective 40’s treated and recognized the line to which defendant claims as the true line, and claimed to same, for more than 10 years prior to the time, the plaintiff purchased, and, indeed, for more than 10 years before the defendant purchased from Braune & Moore, and that defendant had been in possession ever since, and from which the jury could infer that the title to these few acres was divested before plaintiff bought said 40, notwithstanding he had the record title to the entire 40. The trial court did not, therefore, err in refusing charges 3 and 6, requested by the plaintiff. They instruct a finding for the plaintiff as to all land embraced in the 40, if plaintiff had the record title, regardless of the evidence of adverse possession. It is insisted that there was proof that the defendant claimed only the land embraced in his 40, and up to this line, only in case his deed covered it, and that his claim was not adverse, if he claimed only to the true line. This contention was not established beyond dispute, as the defendant in effect denied the admission. Moreover, there was proof from which the jury could infer that the adverse possession of the defendant’s predecessors had ripened into title long before the defendant bought the land.

Rulings of the trial court upon the evidence were either without error, or, if error was committed, it was error without injury.

Affirmed.

Tyson, C. •!., and Dowdell and McClellan, JJ., concur. .