63 So. 651 | Ala. | 1913
— Statutory ejectment, brought by George W. White, appellee, against O. R. Swindall and wife, appellants, for the recovery of certain lands in Etowah county, Ala. From a verdict and judgment for the plaintiff, the present appeal is prosecuted. After the appeal was taken, and before its submission, the appellee White and O. R. Swindall, one of the appellants, died. Thereupon, in this court, the deaths of said parties were suggested, and the cause, as to appellee White, was revived in the name of Morris Ford, as his administrator, and, as to the appellant O: R. Swindall, was revived in the names of his heirs at law.
The defendants entered the plea of not guilty as to part of the lands sued for, and disclaimed as to the
The plaintiff asserted title to the lands under three certain deeds of conveyance, executed by W. B. Ford and others as heirs at law of one I. N. Ford. There was no attempt on the part of either side to trace their respective titles back to the government. On the part of the plaintiff, there was evidence tending to show that W. B. Ford, one of the plaintiff’s grantors, was in possession of the lands sued for, as far back as 1884, and that this grantor had entered into possession under a conveyance from J. R. Corley and wife, made to L. M. Ford and to the heirs of I. N. Ford, and which deed was executed on the 6th day of May, 1883.- W. B. Ford was one of the heirs of I. N. Ford, deceased. The testimony of the plaintiff further tended to show that, while W. B. Ford was in the possession of the land, he made an arrangement with one C. H. Self, in the year 1897 or 1898, by which the latter was allowed to enter on the lands, or a part of the same, and to clear up and use it, and that Self’s possession thereafter was permissive. It does not appear that the plaintiff was ever in the actual possession of any of the lands embraced in this suit; on the contrary, it does not appear that this man
On the part of the defendants, there was testimony tending to show that one J. P. McCartney was in the actual possession of these lands in 1879, under claim of ownership, and that McCartney acquired his possession and ownership from the Aubrey heirs in 1879, and that he continued in possession until he sold and conveyed the same to C. H. Self in 1889. The defendants’ testimony tended to show that McCartney, Self, S. T. Swindall, and O. R. Swindall had been in the continuous possession of the lands, under claim of ownership, from 1879 down to. the time of the institution of the present suit.
In the conveyance from C. H. Self and wife to S. T. Swindall, and from S. T. Swindall and wife to O. R. Swindall, the lands covered by the defendants’ plea are described as fractional part of S. E. 14 °f S. W. % of section 10, township 13, range 5, lying on the west side of the Gadsden and Guntersville road, in Etowah county; while in the conveyances made to plaintiff the lands are described as E. % of S. W. % of section 10, township 13, range 5, except five acres on west side of the Gadsden and Pine Swamp road, in same county.
Under the evidence, it would appear that the Gadsden and Guntersville road and the Gadsden and Pine Swamp road are one and the same. The testimony on
Against the objection and exception of defendants, the court permitted plaintiff to read in evidence a deed from J. R. Corley and wife to L. M. Ford and the heirs of I. N. Ford. There was no merit in the objection interposed to the introduction of this deed. It was admissible to show color of title, taken and considered in connection with the testimony of W. B. Ford, that he was one of the heirs of I. N. Ford, and that under this deed he entered upon and took possession of a part of the lands sued for, in the year 1884. The fact, if it were a fact, that this deed was acknowledged before one of the grantees, as a justice of the peace, did not render the instrument inadmissible, when offered for the limited purpose of showing color of title; for, assuming that this deed was neither acknowledged nor attested, this defect or omission would not affect its quality as evidence of color of title, for it would still be operative to give color of title to the lands described in it, and draw to the party to whom it was given possession of the whole tract, upon his taking possession of a part, unless the remainder of the tract was, at the time, in the actual, adverse possession of another. — Dorlan v. Westervitch, 140 Ala. 283, 37 South. 382, 103 Am. St. Rep. 35; Reddick v. Long, 124 Ala. 261, 27 South. 402; National Bank of Augusta v. Baker Hill Iron Co., 108 Ala. 635, 19 South. 47. Nor was there any merit in the objection .'.that this deed did not include the lands sued for. It conveyed all of the S. E. % of the S. W. % of the section, except about five acres off the west side of the Gadsden and Pine Swamp road. It may be that the exception is void for uncertainty, for there was evidence that there were between eight and ten acres west
Against the objection and exception of defendants, the court permitted plaintiff to read in evidence a deed from D. L. Loyd and others, calling themselves, in the body of the deed, “as heirs of the estate of I. N. Ford,” to George W. White, the plaintiff. This deed was executed on the 1st day of February, 1900. Apart from the recitals of the deed, there was no evidence to show that any of the grantors were in fact the heirs of I. N. Ford, nor was there any evidence tending to show that any of these grantors were ever in possession of the lands. The recitals of this deed, to the effect that the grantors were the heirs at law of I. N. Ford, deceased, were not evidence as against the defendants, who were not parties to, or privies under it. On proper objection, doubtless the court would have excluded this deed. The defendants objected to the introduction of this deed on other grounds, however, and which were without merit. The defendants can therefore take nothing by this assignment.
There was also an objection and exception by the defendants to the action of the court in permitting plaintiff to read in evidence a deed from F. M. Coston and Sallie Coston, executed to> the plaintiff, G. W. White, and dated May 14, 1900. There was testimony before the jury that Sallie Coston, or S. L. Coston, one of the grantors in the deed, was an heir at law of I. N. Ford. The objections assigned were that its execution had not been proved, and that it failed to describe the lands in suit. The bill of exceptions, while, silent as to whether the notary of Craigshead county, Ark., before whom
The plaintiff was also permitted to introduce in evidence a deed executed by W. B. Ford and others to him, executed on the 8th day of January, 1900. However, the court admitted this deed only as to the interest of W. B. Ford. This deed was acknowledged by W. B. Ford before one B. M. Ford, as a justice of the peace. Signed to the deed, along with the other names, are the names of B. M. Ford and wife. While the name of B. M. Ford is signed to the deed, and he acknowledged its execution before a justice of the peace, yet in the body of the deed it is recited to be the deed of W. B. Ford, J. B. Ford, S. E. Ford, and J. C. Ford and wife, and no mention is made therein of B. M. Ford and wife. Under the uniform rulings of this court, this deed was void as a conveyance of the interest of B. M. Ford in the lands. As a conveyance of the legal title of B. M. Ford it was void; but, as a contract to convey, was it not good and enforceable? We think it was. — Rushton v. Davis, 127 Ala. 279, 28 South. 476. B. M. Ford being
It may be insisted that, inasmuch as there is no proof in the record that B. M. Ford, the justice, was the same B. M. Ford whose name is signed to the deed, it will be presumed that there were two parties in that community bearing that name; or, to state the proposition differently, that this court will, in order to support- the ruling of the lower court, rather presume that the B. M. Ford who signed the deed is a different B. M. Ford from the one who acted as justice of the peace in the case. The answer is that identity of name is presumptive of identity of person, unless it appear that there are two or more persons in the same community or vicinity bearing the same name. The bill of exceptions purports to set out all the evidence, and it nowhere appears that there were two persons in that county by the name of B. M. Ford. Hence it will be presumed that B. M. Ford, the justice, and B. M. Ford whose' name is signed to the deed, are one and the same person.— Woods v. State, 133 Ala. 162, 31 South. 984; Garrett v. State, 76 Ala. 18. The plaintiff evidently realized that the acknowledgment was defective, for he sought to cure the defect by proving by W. B. Ford that he “signed” the conveyance. The attempted proof was insufficient to authorize the introduction of the deed against the objection of defendants. Section 4006 of the Code provides : “The execution of any instrument of writing attested by witnesses may be proved by the testimony of the maker -thereof, without prodiicing' or accounting for
The court, on objection of the plaintiff, declined to permit defendants to introduce a deed from J. P. McCartney and wife, executed February 28, 1898, conveying the lands in question, or a part thereof, to one C. H. Self. • So far as the record shows, this deed was offered as a muniment of title, and was not limited to color of title. The deed had not been recorded, and the certificate of acknowledgment of one of the grantors was substantially defective, and the deed was not therefore self-proving. In declining to permit the introduction of this deed, without proof of its execution, the court committed no error.
The deed of J. D. Aubrey and others to J. P. McCartney, under date of January 1, 1880, offered by the defendants, was not self-proving, and, offered as a muniment of title, was inadmissible Avithout proof of its execution, and no such proof Avas made. There Avas no error committed by the court in excluding this deed.
This, then, disposes of all questions presented by the record for our review, growing out of rulings of the court in admitting and excluding documentary evidence offered by both sides.
While the court permitted the plaintiff in this cause to offer evidence to show that no one claimed to own the lands in dispute except the Fords’, up to the time of their conveyance to the plaintiff, yet it refused to permit the defendants to show that, during the time McCartney and Self claimed to own the land, no one except McCartney and Self asserted title to the • land. The court also declined to allow the defendants to show
It is strenuously argued by counsel for appellants that the court committed reversible error in permitting the witness W. B. Ford to testify that C. H. Self enter
There was evidence before the jury tending to show, and if believed did show, that defendants entered upon the lands in dispute in good faith, and under color of title, as purchasers, from parties in possession. Under this state of the proof, they had the right to set up an outstanding title to defeat this action, if they could, and the court committed error in excluding from the jury that part of the showing made for the absent witness, A. Baber, which tended to show an outstanding title. Of course, however, this testimony should have been admitted, upon proper instruction to the jury as to the effect of the alleged agreement had by Self with Ford, and by which the former entered upon the lands,
The first part of the court’s oral charge to the jury, which was excepted to by the defendants, as applied to the facts in this case, was not a correct statement of the law. The burden was on the plaintiff to show that the lands sued for were in fact within the description contained in his deed, and not upon the defendants to show that they were within the exception.
The second part of the court’s oral charge to the jury, which was excepted to by the defendants, did not set forth all the essential requisites of a holding by adverse possession. In effect, the court charged the jury that ten years’ open, notorious, and actual possession of the land by the Fords would entitle the plaintiff to a verdict, without reference to whether such possession was continuous, exclusive, and under claim of ownership.
The defendants were not entitled to have the jury instructed in the language of any of their refused charges.
For the errors pointed out, the judgment of the court below is reversed, and the cause remanded.
Reversed and remanded.