Spragins v. Fitcheard

Plaintiff (appellant) sued defendant in statutory ejectment for the recovery of 11.62 acres of land described by metes and bounds as follows: "Beginning at a stake twenty-eight and forty-hundredths (28.40) chains north of the southeast corner of section thirty (30), township five (5) south, range one (1) west, on section line; thence south," etc. Further the land was described in plaintiff's declaration as "being a strip of land off the north and of that certain tract of land conveyed to Mourning T. Hembee by deed of J. H. J. Williams," etc., wherein the land conveyed (by Williams) was described as "the upper one-half of the tract purchased of John M. Crowder," etc. Afterwards the plaintiff amended the complaint by striking out the words "the same being a strip of land off the north end," etc., and "the upper one-half of the tract purchased of John M. Crowder," etc. The court directed a verdict for defendant. It was very clearly made to appear in the trial court, as the record here discloses, that the parties traced their paper titles back to a common source, viz.: J. H. J. Williams. In such case it is sufficient to prove a title derived from the common source without proving an anterior title, as neither party can deny such title. 5 Michie, Dig. p. 271, where cases from Pollard v. Cocke, 19 Ala. 188, to Florence Bldg. Assn. v. Schall, 107 Ala. 531, 18 So. 108, are cited. But this did not estop the parties to show title by adverse possession (Stewart v. Ransom, 204 Ala. 589, 87 So. 89), and plaintiff did claim title by adverse possession antedating defendant's possession, and in this latter case there was no need to trace title beyond his possession. This case appears to have been tried by defendant in the trial court, and by the court, upon the theory that, if the land in suit was situated in the mathematical and geographical north half of the tract conveyed by J. H. J. Williams to Arthur Williams, from whom plaintiff derived paper title to the south half of the same tract, then *Page 696 plaintiff could not recover. This theory of the case overlooks plaintiff's claim of title by adverse possession prior to the possession of defendant, which plaintiff offered to show in evidence. Furthermore, plaintiff offered to show that about the time of the execution of the deed from J. H. J. Williams to Arthur Williams and to Mrs. Hembee, under the latter of whom defendant claimed — these two conveyances were evidenced by one deed — and inferably with a view to the execution of the deed, or to mark the line by which the grantor's deed had already divided between Arthur Williams and Mrs. Hembee, his children, a surveyor located the line between the south half and the north half of the tract as being at an old road, and either the surveyor or Arthur Williams set up a stone to mark the location of the line so determined. Mrs. Hembee was not present at the location of this line, but the evidence afforded an inference that her husband, who was there, acted in her behalf, and that subsequently and for many years she, or her tenants on one hand, and plaintiff or his tenants and predecessors in title on the other, cultivated the land on their respective sides and exercised other acts of ownership up to the line so laid down. This state of the case required the admission of the evidence offered by plaintiff to show the interpretation put upon the deed by the parties in interest and to show a title to the land in suit by adverse possession in plaintiff. Brown v. Cockerell, 33 Ala. 38; Hopkins v. Duggar,204 Ala. 626, 87 So. 103; Smith v. Bachus, 201 Ala. 534,78 So. 888; Hoffman v. White, 90 Ala. 354, 7 So. 816; Alexander v. Wheeler, 69 Ala. 332. Nor did the provision of the Code, § 2830, that "adverse possession cannot confer or defeat title to land unless the party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded," etc., apply to this case, for, clearly, the question between the parties was one of boundaries between coterminous owners. Smith v. Bachus, supra. If the evidence offered by plaintiff had been admitted, the result, to say the least, would have been for jury decision. The docket shows a submission of this cause "on motion and on merits." There are two motions shown by a paper writing in the file: One, to dismiss the appeal for that the judgment appealed from was rendered more than six months before appeal taken (Acts 1919, p. 84); the other, to affirm for the reason that the transcript was not filed with the clerk of this court within 60 days after the signing of the bill of exceptions. Id. It does not appear, however, that either motion was filed with the clerk. Neither was spread upon the motion docket. Assuming, with reservation, that these motions are before the court, they are overruled. As to the first mentioned it may be noted that the appeal was taken more than six months after judgment on the verdict; but there was a motion for a new trial raising the same questions that had been raised at the trial (Florence Co. v. Field, 104 Ala. 471, 16 So. 538), and the record does not show that six months elapsed before the ruling on the motion, which plaintiff has a right to bring into review, and the filing of security for the costs of appeal by which the appeal in this case was taken. Act, supra. The motion referred to in the second place, supra, in the absence of a stipulation for its submission at the same time with the submission on the merits, should have been submitted for a ruling in advance of the submission on the merits. Reversed and remanded. All the Justices concur, except ANDERSON, C. J., who dissents from the ruling on the motion to dismiss the appeal because not taken within six months of the ruling on the motion for a new trial. On Application for Rehearing.