43 So. 126 | Ala. | 1907
This was a statutory action of ejectment, originally brought by the appellee, “individually and as guardian of Fannie Frolichstein, a lunatic, and for said lunatic’s use,” against the appellant. During the progress of the case the complaint was amended by
The defendant (appellant) makes the point that the evidence introduced by the appellee (plaintiff) did not correspond with the abstract of title which had been furnished to defendant by plaintiff. We do not find that objection was made to the introduction of the evidence on that ground, but -the only way in which it seems to have been brought up was that the defendant offered the abstract in evidence, and it is not set out in the bill of exceptions, but it is merely stated that it contained certain statements. If the defendant had desired to take advantage of the provisions of section 1531 of the Code of 1896, he should have objected to the introduction of the deeds on that ground. — L. & N. R. R. Co. v. Massey, 136 Ala. 156, 33 South. 896, 96 Am. St. Rep. 17.
The bill of exceptions does not show that any objection was offered by the defendant to the introduction of the “certified copy of the record and judgment including a writ of possession by Frolichstein against Pelers.” The plaintiff was seeking to show by evidence that a title had matured, in her father by adverse possession, and it was proper to show that whatever possessory title had been held by her father had vested in her. Hence it was proper to admit the deeds from her sisters and brother to her.
The question to the witness Leroy Kimball, “How long did he live on it claiming to hold for Frolichstein?” was proper, and the objection to it properly overruled. The court holds that this is not equivalent to the question as to whether a third party knew a thing, as in the case of Ashford v. Ashford, 136 Ala. 633, 640, 34 South. 10, 96 Am. St. Rep. 82, but has been recognized as allowable under previous decisions of this court. — Eagle & Phoenix Co. v. Gibson, 62 Ala. 369. The same question to the witness Cox comes under the same category. Besides, he did not answer it.
The court, at the instance of the plaintiff, 'gave the general charge in favor of the plaintiff as to a portion of the land sued for, and therein set forth. The defendant assigns this as error, and the plaintiff contends that it Avas proper, and that, as a consequence, any errors that may have been committed Avere errors without injury. Hence it becomes necessary to analyze the testimony. The land described in the charge and in the verdict .consists of the E. 1-2 of section 26, and W. 1-2 of section 25 (Avhich according to the testimony of the surveyors constitutes what is known as “section 37”), tie S. E. 1-4 of section 24, and N. E. 1-4 of section 25. Nothing is said by any of the witnesses about either of the grantees, mentioned in either of the deeds, entering into possession under the deed; but, admitting that evidence that a party held the deed and at the same time Avas in possession of a part of the land described is sufficient to infer that he was holding under the deed, yet, in order to constitute either deed color of title, it is at least necessary to prove that the party to Avhom it Avas made Avas in possession of some part of the land and claiming it all. — Nat. Bank of Augusta v. Baker Hill Iron Co.., 108 Ala. 636, 639, 19 South. 47.
The first deed introduced is that of Chandler to Peters — Exhibit A. That deed describes section 37 and S. E. 1-4 of section 24; also “N. W. Div. A. of fraction 25, and Div. A. of frac, section 25, containing 5 acres.” Whether the first call as to section 25 Avas meant for fractional section, or Avhere “Div. A of frac, section 25” is, the record does not show.- So that deed could not furnish color of title to any land in section 25, except AAdiat was comprehended in section 37, and in order to shoAV color of title to that Avhich is described, it was necessary to show possession of some part by Peters, and that
The next is the deed of Peters to Simon Frolichstein (Exhibit B) which does not describe any of the lands included in the charge. It does mention “Frac. N. E. 1-4 of sec. 25,” but does not state in what township it is, and the other lands therein mentioned are said to be in section 13 and section 39; one of these last being in range 2 and one in range 1. So this deed cannot operate as color of title to any land.
The next paper offered is a mortgage from Peters to Simon Frolichstein (Exhibit C),-dated April 24, 1867, which describes the land as section 37, bounded on the east, by Dog’ river, etc., and the S. E. 1-4 of section 24 (with other property not involved in this suit), from which, according to the map in evidence, the greater part of N. E. 1-4 of section 25 is omitted, even allowing that the mention of the boundary could extend section 37 into said N. E. 1-4 of section 25 at all. There is nothing to .show that this mortgage was ever foreclosed, or that possession was taken of the land on default of payment. On the contrary, the mortgage being in possession of the plaintiff, and no showing that anything was done under it for more than 20 years, the presumption would be that it was paid.
The lease of the small five-acre tract by Peters, and the release of dower by Mrs. Chandler, also the quitclaims of all interest, not describing any lands — Exhibits H and I — do not show anything about the possession of the land in question. Besides the fact, heretofore noticed, that a portion of the land is not described in the instruments claimed as color of title, it will be seen that the evidence is not at all definite as to just what land either Peters or Browning was in possession of. Dog river, of course, does not designate any particular section, and, when it is said that Peters lived on section 25, there is nothing to show what part of the sec
The judgment of the court is reversed, and the cause remanded. .