Veitch v. Hard

Apr 5, 1917
6 Div. 205.
Reporters:
, ,
Before:
Somerville

Lead Opinion

SOMERVILLE, J.

Plaintiff showed a good paper title to the land sued upon, and the issue turned upon the sufficiency of defendant’s adverse possession to acquire a new and superior title.

It does not appear that any of the grantors or grantees in the chain of title which defendant claimed through George Smith, except Smith himself, ever had any possession, or exercised any act of ownership over the land. And -Smith’s possession of 18 *79 months ceased about 1886. Defendant’s claim, therefore, depends entirely upon her own acts of possession since her purchase in 1902.

[1] A document offered as color of title is relevant and admissible in evidence for that purpose only in connection with evidence of actual possession and claim thereunder by the grantee therein. National Bank v. Baker Hill Iron Co., 108 Ala. 635, 19 South. 47; Henry v. Frohlichstein, 149 Ala. 330, 43 South. 126. Hence all of the color of title deeds, except the deeds from Hard and McQueen directly to defendant, should have been excluded upon the objection and motion of plaintiff.

The charges given at the instance of defendant all state correct propositions of law, often declared, and need not be noticed in detail. If some of them were misleading, as suggested by counsel, explanatory charges should have been requested.

[2] Charge 4, refused to plaintiff, “that, as the defendant is claiming the land sued for under two separate deeds, any possession which may have been shown as to either of the 40 acres in quarter section cannot bar plaintiff’s right to recover the other quarter section,” seems to be intended to assert the proposition that where a grantor executes two separate deeds to the separate parts of a tract to the same grantee, possession of either one of the tracts is not to be extended to the other, as would be the case if both tracts had been otherwise. But it is not material here, since the requested instruction ignores the fact that defendant was claiming, not only under the two separate deeds, of even date, from CShas. F. Hard, but also under the quitclaim to both 40’s from J. W. McQueen. It was therefore, in any case, properly refused.

[3-5] Refused charges 5 and 19 state obviously correct propositions of law, and their refusal was error. It does not appear that they were substantially covered by any part of the court’s oral charge, or any written charge, and hence we cannot say that their refusal was aught but prejudicial.

[6, 7] The other special charges requested by plaintiff (except 22) were properly refused, either as being misleading, argumentative, or as ignoring parts or phases of the evidence. Charge 22 states the law correctly as to the limitation of 3 years by-adverse possession under tax deeds. But it was refused without error, in view of the fact that defendant was not invoking such a limitation, and the trial judge had instructed the , jury that defendant could defeat plaintiff’s title only by an adverse possession under any of her deeds for 10 years, an instruction far more advantageous to plaintiff than the special charge referred to.

[8] Where an instruction requires that adverse possession must be continuous for 10 years it is not necessary to also say that the 10 years must be consecutive. Hays v. Lemoine, 156 Ala. 465, 47 South. 97, declared a charge bad for the omission of the latter term, but its practical synonym “continuous” was there omitted also.

[9] So where, in defining adverse possession by a statement of its various elements, the term “hostile” is omitted, but the possession itself is required to be adverse, the omission is not per se erroneous, but should be corrected by an explanatory charge, further explaining the meaning of the term “adverse.”

We find no reversible error in the parts of the oral charge excepted to.

As the facts will be tried again by a jury, we refrain from any ruling upon the sufficiency of defendant’s adverse possession as against plaintiff’s request for general affirmative charges in her favor upon that issue. See, however, the following cases, which are more or less in point: Brannan v. Henry, 175 Ala. 454, 57 South. 967; Bass v. Jackson Lumber Co., 169 Ala. 455, 53 South. 800; Owen v. Moxon, 167 Ala. 615, 52 South. 527; Chastang v. Chastang; 141 Ala. 451, 37 South. 799, 109 Am. St. Rep. 45; McCreary v. Jackson Lumber Co., 148 Ala. 247, 41 South. 822; Alexander v. Savage, 90 Ala. 383, 8 South. 93; Farley v. Smith, 39 Ala. 38.

For the errors noted the judgment will be reversed, and the cause remanded for another trial.

■ Reversed and remanded.

ANDERSON, O. J., and MAXFIEDD and THOMAS, JJ., concur.



Addendum

On Rehearing.

SOMERYIDDE, J.

[10] One of the tracts in said suit was purchased from the government, on or before March 15, 1837, by Arthur McFall, to whom a patent was issued on Sep■tember 20, 1839. It is contended that, as the patentee’s deed to plaintiff’s ancestor was made on September 24, 1838, it passed no title to him. It does not appear whether the entryman had made final payment before his alienation of the land, but, whether he had or not, his warranty deed carried to his grantee the “legal title afterwards acquired by patent.

[11-13] The deed from Arthur McFall to Wm. McFall appears to have been signed by mark, and was acknowledged before a Mississippi justice of the peace, without formal attestation. Without proof of the official authority of the certifying officer, this’ deed was not entitled to registration. Olay’s Dig. ‘p. 153, § 8. But since there was no law, prior to the Code of 1852 (section 1266) requiring the attestation by two witnesses of a deed signed by mark (Hendon v. White, 52 Ala. 597, 603), this deed was prima facie validly executed; and, under the provisions of sections 3382 and 3374 of the *80 Code of 1907, a certified transcript of its record dispensed with proof of its execution. Indeed, we do not find that defendant in any way objected to its admission.

[14] There is no merit in defendant’s contention that there was a variance between the complaint and the evidence, in that the complaint alleges prior possession in‘plaintiff and the proof shows only a constructive possession by virtue of documentary title. Prior . constructive possession has always been deemed sufficient to authorize a recovery in statutory ejectment, when supported by the paramount legal title. The broadening of the form of the complaint effected by section 1530 of the Code of 1896 (see Jackson v. Tribble, 156 Ala. 480, 47 South. 310), so as to permit an allegation either of prior possession or of legal title, was obviously not intended to change the established conception of prior possession as being either actual or constructive, and it cannot be given that effect.

The petition for rehearing must be over-ruled. ”

ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.