55 So. 606 | Ala. | 1911
This is an action of ejectment for the recovery of the S. y2 of S. W. % of the N. E. % of section 30, township 9, range 17. The plaintiffs never proved title to the land, nor actual possession .of any part of the forty of which the land involved is a part, in their grantors or themselves, prior to the actual possession of the defendant.
They did show color of title to the entire forty, and attempted to show actual possession to the N. %, and which, if true, would, under their color of title, extend their possession to the S. y2, if not in thé actual possession of another. The plaintiffs did not show actual possession of the N. y2, in themselves or their vendors, prior to- the defendant’s actual possession of the S. y2.
The witness Browder did testify that Powell came down there, prior to 1899, to look after the land for Flowers, but this, of itself, did not show actual possession of the N. y2 of the forty, and the witness, on cross-examination, showed that Powell, nor any one else, had been in the actual possession of any part of the forty, before the defendant went into the actual possession of the S. y2 of same.
The plaintiffs also attempted to establish a possession by a surrender of possession by the defendant to Maj. Steiner, but which was denied by the defendant. It might be conceded, however, that this contention was true, yet the proof shows that the defendant continued in the possession many years thereafter, and it does not appear that the surrender to Maj. Steiner was for the benefit of plaintiffs or their grantors.
Reversed and remanded.