Jones' Heirs v. Walker

47 Ala. 175 | Ala. | 1872

B. F. SAFFOLD, J.

The suit, in the nature of ejectment, was instituted by the appellants against the appellees. The source of title of both parties was a sale of the land made by an Indian reservee to Zimmerman and Freeman. The defendant was a purchaser from Willis, who bought Freeman’s half interest at a sale under execution in 1852; The plaintiffs claimed under a title from the United States, made in November, 1856, hi consideration of a purchase by them ancestor, Jones, from Zimmerman and Freeman, who conveyed to him by separate quit-claim deeds, the first in 1855, and the other in 1856. The defendant was in possession at the time of these conveyances to Jones.

1. A certified copy of the sheriff’s deed to Willis was received in evidence, against the objection of the appellants that the absence of the original had not been accounted for. Section 1544 of the Revised Code requires the reception of such a transcript, when it appears that the party offering it has not the custody or control of the original. It does appear from the evidence that this deed conveyed to Willis much more land than he conveyed to the defendant. Besides, she had no right to its custody.

2. The transcript of the proceedings in the county court of Mobile, showing the judgment against Freeman, for the •satisfaction of which the land was sold, was objected to by the appellant, as evidence for the defense. This judgment was in favor of the Mobile Branch of the State Bank, and was obtained on motion. It was rendered on a promissory note, in 1840, at which time this bank was authorized by law to recover judgment on such debts, by motion, in either the circuit or county court of Mobile, on giving thirty days notice to the debtor, and producing to the court the certificate of its president that the debt was really and tona fide the property of the bank. — Clay’s Digest, p. 90, § 7. This was done.

When the county courts were abolished, in 1850, their records were transferred to the circuit court, the clerk of which became by law their custodian. The transcript is certified by the clerk of the circuit court of Mobile county to be a correct copy. The jurisdiction of the court was sufficiently shown, and the transcript was properly certified.

3. The certificate of the acting commissioner of the general land-office at Washington, appended to the deed from Freeman and wife to Jones, was a sufficient authentication of any paper or document appertaining or belonging to that office. — Rev. Code, § 2694. But the transcript was only admissible as secondary evidence of that deed after notice to the plaintiffs to produce the original. — 2 Phil. Ev. 519, 520; Jones’ and Parsons’ Heirs v. Inge’s and Mardis’ Heirs, 5 Port. 327. Such notice was not given.

4. The first proposition in the charge of the court is correct. The general rule is, that the plaintiff must recover on the strength of his own title. If his title is insufficient to maintain the action, or the defendant, not being estopped, shows a superior outstanding title, he is defeated. — King v. Stevens, 18 Ala. 475. The meaning of the second is, that a patent from the United States government, when uncontradicted by proof, is sufficient to sustain the action of ejectment. This is undoubtedly true. As to the third, the purchase of Freeman from the Indian reservee, with the approval of the President of the United States, gave him such an interest in the land as was subject to sale under execution. It gave him such a legal title as, if obtained, would defeat a patent issued to a subsequent purchaser from him. Thb patent offered in evidence by the plaintiffs so declares. — Iverson & Robinson v. Dubose, 27 Ala. 418; Rosser v. Bradford, 9 Port. 854.

6. The fourth proposition of the charge is incorrect. In Baker v. Chastang, (18 Ala. 417,) it is said to be well settled, that the plaintiff in ejectment may declare for the whole, or the entire interest, and recover a less interest. There is no evidence whatever that the defendant ever obtained more than Freeman’s interest in the land, which was an undivided half. The facts stated in this portion of the charge, in view of the evidence, would not prevent the plaintiffs from recovering Zimmerman’s interest.

7. The possession of the defendant at the time of Zimmerman’s conveyance Jones was not of such a character as to defeat that deed by adverse possession. — Iverson & Robinson v. Dubose, supra.

The charges asked by the plaintiffs, which were refused, ’ have been sufficiently considered in the examination of the general charge.

The judgment is reversed, and the cause remanded.