124 Ala. 461 | Ala. | 1899
— -This is an action commenced by the appellee, plaintiff in the court below, to recover of the defendants the statutory penalty for the cutting of certain trees on plaintiff’s land. On the trial of the cause, by agreement of parties, the general issue was pleaded in short by consent with leave to give in evidence any matter which might be specially pleaded. The plaintiff, in support of the averment in the complaint of his ownership of the land upon which it was alleged that the trees were cut, offered the following documentary evidence of title: A patent from the general government to one Jesse W. Tucker; a deed from Jesse W.. Tucker and wife to A. B. Bullard; a deed from A. B. Bullard to Bartow Bullard, and a deed from Bartow Bullard and wife to J. S. W. Cawthorn, and a deed from Cawthorn and Avife to the plaintiff.. The deed from Jesse W. Tucker and Avife to A. B. Bullard Avas objected to by the defendants upon the ground that there was no attesting Avitnesses, and, though duly acknoAvledged, had not been recorded within the time prescribed by the laAV to make it self-proving, and there being no proof of its execution. This deed bore date of December 17th, 1860, and Avas therefore more than thirty years old at the time of the trial when it Avas offered in evidence. The deed Avas in the custody of the plaintiff, and it Avas also shoAvn in connection with the offer of the same in evidence that the plaintiff received it from his immediate grantor, Cawthorn, Avho claimed it as a part of his chain of title; and it Avas further shoAvn that A. B. Bullard, the grantee in this deed, had been dead for four or five years, but that during his lifetime, Avliile he- AAras claiming the land in question, he appointed one Earl as his agent to look after the same, and that said agent for ten or twelve years gave in said land for taxation for A. B. Bullard and paid the taxes on same for him. There was no evidence that either Bullard or Cawthorn Avere ever in the actual possession of said land, the evidence shoAving that the said land was Avild, unenclosed timber land having no improvements on it. The deed unquestionably comes within that class denominated ancient documents, and which are admitted in evidence without proof of execution; their admissibility as ancient documents being based upon the pre
It is contended by appellants that in order to render the deed admissible in evidence, it was necessary, in the absence of proof of its execution, in connection with it as an ancient document, to prove enjoyment under it, or other equivalent explanatory proof, citing Beal v. Derring, 7 Ala. 124; Doc v. Eslava, 11 Ala. 1028; Carter v. Doe, 21 Ala. 72; Alexander v. Wheeler, 78 Ala. 167.
The deed here offered was Avitliout any suspicious circumstances whatever attaching to it. It was a link in the chain of title. It is found, in proper custody, and Avas receiAred by the plaintiff from his immediate grantor, Aidio Avas at the time the proper custodian of it. This in connection Avith the proof that the lands in question Avere Avild and unenclosed lands, Avith no improvements thereon, and that Earl as the agent of A. B. Bullard, the grantee in the deed, looked after the lands and paid the taxes on the same for said Bullard for ten or tAvelve years, prior to the time Bullard sold it in 1889, acts referable to the title, Avas sufficient as corroborative evidence, to admit the deed as an ancient document, Avithout other proof of its execution. This vieAv, Ave think, is clearly sustained in Doe v. Eslava, supra, where on page 1040 it is said: “An ancient deed, that is, one more than thirty years old, having nothing suspicious about it, is presumed to be genuine without express proof; and if it is found in the proper custody, and corroborated by evidence of ancient or modern corresponding enjoyment, or by other equivalent or explanatory proof, it is presumed that the deed constituted part of the transfer of property therein mentioned; because this is the usual and ordinary course of such transactions among men. The residue of the transaction may be unerringly inferred from the existence of genuine ancient documents.” Citing 1 Greenleaf on Evidence, § § 166 to 169 inclusive, and notes.
The suit Avas brought' under section 4137 of the Code of 1896, which gives to the land-OAvner a penalty for certain specified trees Avillfully and knowingly cut by an,
It is sliOAvn by the evidence on the part of the defendants that the defendants Avent into possession of the land upon Avhich the alleged trees Avere cut in 1894 under a certificate of purchase made by them at a tax sale in said year, and continued in possession of the land, claiming to oavu the same, and that after the expiration of tAVO years from the date of said tax sale they received a tax deed. This' deed, hoAvever, they failed to record, and when the same was offered in evidence by the defendants in connection with the proof that they had gone into possession of the' land under the certificate issued to them, it Avas expressly stated that the tax deed Avas offered only as color of title, and it Avas so received in evidence. The tax deed Avas not offered as muniment of title. It Avas also shown in evidence by the defendants that the land in question had no improvements upon the same and Avas practically of little or no value except for the timber thereon; that they'continued in open, notorious possession of the same, cutting timber therefrom, during the years ’95, ’96 and ’97, doAvn to the institution of this suit, during all this time claiming to oavu said land, and Avere so in possession and claiming to oavu such land at the time of the cutting of the trees for Avhich this suit Avas brought. Under this evidence, we think the court ei’red in refusing Avritten charges, B, C and F, each of Avhich contained correct legal propositions. Charges G- and II Avere bad, in ignoring the element of good faith, or the bóna fi.de claim of OAvnership or title. A mere adverse holding even under color or claim of title is not alone, sufficient to defeat the plaintiff’s right to recover the penalty under the statute, if such adverse holding has not ripened into a title by the lapse of ten years. But if such adverse possession be accompanied Avith a bona fide claim of title or ownership of the land, though short of the period of ten years, the defense Avould be complete, as the cutting of the timber under such circumstances, would not be knowingly and willfully done within- the meaning of the statute.
There Avas evidence also on the part of plaintiff tending to shoAV fraud in a change and alteration of the
Charge designated A, requested by the defendants, exacted an improper standard or measurement of proof. The charge would have been good if it had been predicated upon reasonable satisfaction by the jury from the evidence, instead of the expression used in the charge, “if the jury are reasonably persuaded from the evidence.” This charge, for the reasons stated, was properly refused.
As the tax deed offered by the defendants was not offered as muniment of title, but ivas expressly limited as color of title, charges 1 and 2 given by the court at the request of the plaintiff were misleading in their tendencies and we think manifestly calculated to injure and prejudice the rights of the defendants. If the tax deed had been offered as muniment of title, the giving of these charges would not have been improper, but as it was not so offered, there was no issue on the tax title as a muniment, and the natural tendency of the charges given were to destroy it even as color of title, or at least reasonably calculated to prejudice in this respect, and the charges given should have been refused.
For the errors pointed out, the judgment of the circuit court must be reversed and the cause remanded.
Reversed and remanded.