Dorlan v. Westervitch

140 Ala. 283 | Ala. | 1903

HARALSON, J.

1. L. R. Bart, shown to be the county surveyor, and one of experience for about twenty years, surveyed the land sued for in October, 1900, and made a map of it, which map was introduced in evidence and was before the witness when testifying. The plaintiff handed the witness plaintiff’s deed which he said he would offer in evidence, and asked the witness to state, “whether or not the land described in the complaint, [which was also handed the witness] is a part of the land described in the deed?” and the witness answered that it was. Before the answer the defendant objected to the question because calling for incompetent and illegal evidence. There was no error here. Land, when sued for in ejectment may be identified as other property.—Bullock v. Malone, Minor, 400; Sikes v. Shows, 74 Ala. 382; Payne v. Crawford, 102 Ala. 399.

2. The plaintiff, among other claims to the property in question, set up' her adverse possession of the same; that she had lived where she now does, on a part of the land, claiming it as her own for thirty-six years, and had been holding and claiming the tract in question ever since a deed had been made to it by John Rose in November, 1884, to her and her husband. It was shown that a man by the name of Shambeau built a house on it, as the evidence tends to show, in 1894, which house is referred to on the map as the Dr. Davis house, and which Davis afterwards leased from the plaintiff. While plaintiff was being examined, she was asked by her counsel: “During the time you have been living there since the deed in 1884 from Rose, have you been claiming, — how much land have you been claiming to own?” The defendant objected because the question called for illegal, irrelevant and incompetent evidence. It was necessary under her claim of adverse possession, that plaintiff should prove as one of the elements of such claim, that she claimed to own the land during the period covered by the question. The question called for a fact, and not the undisclosed intention of tbe witness as contended for defendant; nor was the evidence illegal or irrelevant, because of the statement that she claimed 175 acres, if the land sued for was a part of it. She testified that Bose claimed this 175 acres before he sold the land to her, and that the land in suit was the same land that was described in his deed to plaintiff—Bank v. Baker Hill Iron Co., 108 Ala. 635.

3. The plaintiff sought and was allowed to introduce a deed to the land from Probate Judge Norton, of the date of the 23d day of May, 1874, to Joseph Bose, and one from Bose to the plaintiff, dated the 1st day of November, 1884. The deed from Horton to Bose was not acknowledged or attested by one witness. The plaintiff had testified that the land sued for, Avas the land described in the Bose deed; that Bose had occupied it and exercised acts of OAvnership over it while he owned and claimed it; that the only claim she made to the land was under this deed, and that she and her husband had been claiming it thereunder since 1884. Plaintiff offered these two deeds for the purpose of shoAAdng color of title. The defendant objected, separately, to the deed of Horton, because it was. neither acknowledged or attested, nor was it recorded within one or five years from its execution, but Avas filed and recorded nearly twelve years after its execution, and did not constitute color of title, prior to the date of its record; and to the deed of Bose, because it was not recorded Avithin tAvelve months from the date of its execution, and because as to plaintiff’s husband, it Avas illegal and irrelevant as there was evidence that he was dead and left six children, and the plaintiff as his Avidow. The court ruled that both of these deeds were admissible as color of title. In this there was no error. When one, for instance, enters and claims under a void tax deed, it has been held that it is competent as color of title to show the extent of the purchaser’s possession, or, in other words, where a tax deed is void for want of acknowledgment, it is operative to give color of title to the land described in it, and to draw to the party to whom it is made possession of the whole upon his taking possession of a part.—Reddick v. Long, 124 Ala. 261; Bank v. Baker Hill Iron Co., supra.

So far as the objection goes, — that plaintiff was a tenant in common of the land with, ber children, — it may be said, that the question as to what interest one tenant in common can recover against an entire stranger to the title is not presented in this case. A tenant in common is seized per my et per tout and has only an interest in the lands of the cotenancy such as entitles him to the enjoyment of the entire estate as against any one except his cotenants, and each tenant can pursue his remedies independent of the others, and may maintain ejectment alone to try title.—Hines v. Trantham, 27 Ala. 359; Tarver v. Smith, 38 Ala. 139; Lowery v. Rowland, 104 Ala. 420.

4. The witness, Cuthbert, for defendant, testified that he knew Mulford Dorian, the father of the defendant, ivas in possession of the Ignard lot and claimed it as his own, but witness did not know what time Dorian went into possession. There was some evidence introduced, the tendency of which was to show the identity of the Ignard lot with the land or a part of the land sued for. He further stated, that Mr. Mulford Dorian’s claim of possession or ownership of this lot was generally known in the neighborhood; that he had been claiming the land shortly after the time it was sold by the sheriff, but he could not recollect the dates, and that said Dorian bought the property and spoke to witness frequently of it as his piece of property. The plaintiff objected to the statement of the witness, that said Dorian spoke to him of the lot as his property, and moved to exclude it, on the ground that it was not a declaration made by Mr. Dorian on the property and while in his possession, which motion was sustained. Whether this ruling was correct or not, no injury could have resulted to the defendant therefrom, since the plaintiff gave the defendant an unqualified admission that he claimed'to own the land while in his possession, and that claim was generally known in the neighborhood where it was situated and was openly and notoriously asserted.

5. The defendant for the purpose of showing color of title under which defendant’s claim of adverse possession is based, offered in evidence a duly certified copy of a deed made by John A. Cnthbert to Philip Ignard, dated November the 9th, 1846, which was duly acknowledged, and recorded as shown, on November 9th, 1866, to the following tract of land described as: “Situated at Alabama Port on Mon Louis Island, in the county of Mobile and State of Alabama, containing sis acres more or less, being the same lot on which the said Philip has made improvements on which he resides and which was conveyed by Alexis D. Durand to Audley H. Gazzam in exchange for other lands,” etc.

He also offered in this connection the judgment and execution in favor of Dominique Gimon in the circuit court of Mobile county, dated, December, 20th, 1850, the levy and sale thereunder of the same lands above described, and the deed of the sheriff thereto to H. Powell the purchaser of the' land at the execution sale, and the deed of the said Powell to Mnlford Dorian, the father of defendant, to said lands, dated the 23d day of May, 1900. The plaintiff objected to each of these documents on grounds that no title was shown in John A. Cnthbert a;t the time he made the deed; that the land therein is not shown to be the said land in controversy, or that Ignard ever lived on or occupied the land under the deed. The court ruled that the objection was well taken, on the ground that the deed was void for uncertainty. To constitute color of title it is not necessary that the title under which the party claims should he so certain, in the description of the land as that there should be no indefiniteness in it.—1 Cyc. 1082; Black v. T. C., I. & R. R. Co., 93 Ala. 112. If the description is uncertain but is such as to enable the surveyor in search, and inquiry of facts, to ascertain and locate the land, this is full answer to the charge of uncertainty.—Black v. Pratt Coal Co., 85 Ala. 510. The evidence of the witness Delchamps for the defendant, tends to remove the uncertainty of description and was such as would have enabled a surveyor to locate the land. Moreover, the evidence for the defendant tends to show that he and the one under whom he claims, had been in possession of the land up to the trial for 25 or 30 years. Under such conditions the documents offered in evidence as color of title, on which to found a claim of adverse possession by defendant, should have been admitted.

6. The witness, Reed, testified for defendant, that defendant had placed a wire fence around the land. He was asked if he knew that Mulford Dorian, defendant’s father, who died in 1896, was in possession of this land. He answered, that said Dorian had his sons-in-law (Criminell and Shambeau) who came there and built houses on the land for said Mulford Dorian, and that it was all the time known as Dorian’s land. He also testified, that in 15 years, he had been residing where he then lived, near the plaintiff and this land, there had not been any part of the land that defendant had fenced in, inclosed and cultivated by plaintiff. The defendant moved the court to exclude the question and answer of the witness as to whether Mulford Dorian was in possession of the land, and this was done. This ruling was improper. It tended to support the claim of adverse possession on. the part of defendant’s father and his own possession as heir and successor by inheritance. The evidence tended to show that Mulford Dorian had possession of the land for more than ten years before his death, under a claim of bona fide ownership, openly asserted and well known, which claim was known to, recognized and acquiesced in by plaintiff.—Person v. Adams, 129 Ala. 157.

7. The court in its oral charge to the jury told them, “In order to defeat plaintiff’s right to recover, the evidence must .reasonably satisfy your mind that Mr. Dorian was in possession of some part of that land claiming it. Having no deed, he could only get a title to the part he was actually occupying, and that must have been openly, notoriously and exclusively, claiming to own it, and that must have continued for a period of ten years without any breach.”

This charge was subject to the vice of assuming that the plaintiff had a better-right to begin with than the defendant. Each claimed by adverse holding for the period to perfect the title in himself. Neither showed muniment of title, better than the other. The charge thus took from the jury the consideration of the conflicting evidence as to who had the prior possession, — Mul-ford Dorian, or Joseph Bose and plaintiff, — notwithstanding the direct conflict in the evidence on that question. It placed the defendant in' the attitude of a trespasser, and also relieved the jury from consideration of that phase of the evidence, and the inferences to he drawn therefrom, tending to show that plaintiff did not claim the land, but had admitted to Shambeau and Tam that it belonged to defendant, and that she had moved her fence off of it. If defendant claimed title and possession under tona fide belief of right, he is not to be classed and considered as a trespasser. The claim and the intention to claim title and possession, however the title may be derived, distinguished the possession from that of a mere trespasser.—Dothard v. Denson, 72 Ala. 544.

From what has been said, it will appear that charges 1, 2, 3, 5, 6 and 9 given for the plaintiff each ignores all the evidence of Dorian’s possession; assumed that plaintiff had title or prior possession of the lands, and that defendant was a mere trespasser. Besides, these and all the other charges, for plaintiff, ignore that phase of the evidence, tending to show that plaintiff did not claim the land, but admitted defendant’s possession and claim thereto.

The 10th and 11th charges each denies to defendant the presumed right arising out of prior possession of which plaintiff had full knowledge and acquiesced in, and this applies also to the 6th charge. We have referred only to the charges given which are deemed to be important.

Charge 1 requested by the defendant was properly refused. It did not require the recording of the deed to plaintiff from Bose to make it effective as a color of title.

Charge 2 is admitted to have been properly refused. There was evidence upon which charge 3 was requested, and on the facts hypothecised whether the plaintiff was entitled to recover, was proper for the determination of the jury as proposed by the charge.—Pearson v. Adams, 129 Ala. 157. Charge 4 was the general charge and was properly refused.

Reversed and remanded.