114 Ala. 328 | Ala. | 1896
This is an action of trespass quare clausum fregit, the locus in quo laid in the complaint, being the south half of the northwest quarter of section 33, township 6, range two east, in Baldwin county. The plaintiff proved that the defendant, in July or August, 1895, plowed and fenced about two acres of the land described in the complaint, and cut one pine tree thereon, and 17 pine trees on the outside of the fence, each tree being worth about twenty-five cents. He also introduced a warranty deed executed to himself on the 6th day of November, 1876, by James B. Malone and others, in form, conveying the land in controversy and 520 acres of adjoining land in section 32, and 80 other acres in section 33 located one-fourth of a mile from the loms in quo; describing the land by sectional subdivisions and concluding the description by the following qualifying words : “excepting three acres deeded to Mary Gyon, and three acres deeded to Thomas Collins by J. L. King as per said King and others deeded to us dated June 21st, 1869.” The deed was acknowledged and recorded in the proper county, on April 30, 1877. It does not appear what title to, or connection with, the land these grantors had, if any ; hence the deed is insufficient as evidence of title in the plaintiff, and can only be regarded, at most, as color of title, in connection with any proven possession by him under it. He also introduced a tax deed to himself to these same and other lands, in the form, and executed and acknowledged, in substantial conformity to the statute, on December 8, 1883, in pursuance of a sale for the taxes for the years 1875 and 1876, made on the 4th day of June, 1877, which deed was recorded in the proper county on December 8, 1883.
The defendant introduced a quit-claim deed executed to one Joseph Nelson by Benjamin Grist on August 26, 1880, to said entire section 33, acknowledged same day, but not recorded until October 28, 1895. Pie also intro
The suit was instituted in a justice court, August 15, 1895, and carried by appeal to the circuit court, where it was tried November 6, 1895, resulting in a verdict and judgment for the defendant, from which the appeal is prosecuted.
The plaintiff prayed the following instructions :
1. The general affirmative charge.
2. That the plaintiff in this case has a good title at law to the 80 acres described in the complaint.
3. That if plaintiff was claiming the lands described in the complaint under a deed, and was exercising acts of ownership over said land, and that such acts were such as to show that he was claiming said lands adversely at the time the deed to the defendant was made, they must find for the plaintiff.
Each of these charges was refused, and the plaintiff duly excepted.
It is observed, first, that the plaintiff contends that the tax deed conferred upon him the title to the 80 acres in question. If it be conceded that this deed, aside from
We are next to inquire, under the third charge, whether there was evidence to authorize the jury to find that the plaintiff was claiming the two acres really in controversy, under a deed, and was exercising acts of ownership over the same, and that such acts were such as to show that he was claiming the same adversely, at the time the deed to the defendant was made ; whether, if the facts hypothesized be true, they alone entitled the plaintiff to recover in this action.
We have seen there was evidence tending to show that Hecht and Nettles, under and for the plaintiff, occupied a part of the land in section 32 described in plaintiff’s deed, and not excepted therefrom, for fourteen or fifteen years before the trial, and that plaintiff claimed the land, so occupied, under said deeds. Bonner’s testimony tended to show that he had been cutting wood and piles for plaintiff on the land plaintiff and defendant are “lawing about” for fifteen or sixteen years. It is true he stated on cross-examination that they were “lawing about” section 33, but he did not know what part of said section, but this does not necessarily imply that he did not know the particular land in litigation. He may have known the land without knowing the particular part of the section it formed. The inconsistency, if any, in his testimony was for the jury to solve. From this evidence, the jury might have inferred, in connection with the plaintiff’s testimony, that the land alleged to
Charge number 4 given for defendant was bad, and ought to have been refused. The defendant’s possession, at the time the trees were cut, if he had such, may have been a wrongful invasion of a prior actual, exclusive possession in the plaintiff. If it was, the plaintiff was entitled to a verdict, and not the defendant.
Charge number 5 given for defendant was also bad. If the land occupied by Nettles and also that in controversy, were parts of the land described in, and not excepted from, the plaintiff’s deeds (which, as we have said, the jury might legally infer they were), and plaintiff claimed such lands under his deeds, and put Nettles in possession of the part occupied by him, who held under and for plaintiff, and there was, at the time, no advérse possession of the land in question in any other person, then plaintiff’s possession, through Nettles, extended to the land in question, although the possession and claim of Nettles, as tenant, extended only to the land rented and occupied by him. It was not essential, as the charge supposes, that the tenancy of Nettles should have included the land in controversy, or any part of it.
For the errors in giving these two charges, the judgment is reversed and the cause remanded.
Reversed and remanded.