Dick v. Darden

On Rehearing. SOMERVILLE, J. [1] Complainants having shown that they and their predecessors, as school trustees, had been in the peaceable possession and use of the property in suit for about 60 years, a title in fee simple by prescription is presumed, and the burden of' propounding and establishing a superior title of some sort is cast upon the respondent. It appears that this property originally belonged to one Lee Shaver, the father of respondent, and her alleged title is based upon the-claim that when he executed a deed to the then school trustees, about the year 1858, he therein expressly reserved to himself the reversionary' interest in the land if and when its use for school purposes should be abandoned. That deed was not produced on the!trial, and the issue depended upon respondent’s satisfactory establishment of its contents as a lost instrument. By agreement of counsel the record has been amended so as to sliow that due search was made for the alleged deed of Lee Shaver, and that it could not he found. Our-original opinion, rejecting the deed for want of such a showing, and affirming the decree-of the trial court, is therefore withdrawn, and the appeal is now considered upon the-amended record. The testimony of Mrs. M. J. Hayden, the-widow of Lee Shaver, was, we think, sufficiently clear and certain to sho¡w the material substance of the lost deed. Laster v. Blackwell, 128 Ala. 143, 148, 30 South. 663; Mims’ Ex’rs v. Sturtevant, 18 Ala. 359. [2] In corroboration of her testimony -it was competent to show by the witness J. A. McKenzie the negotiations between Lee Shaver and the school trustees prior to, and in-contemplation of, the making of the grant. [3-5] The alleged deed from Lee Shaver, being more than 30 years old, would have-been admissible without proof of its execution, if the writing itself had been produced. Alexander v. Wheeler, 78 Ala. 167. And where the deed is lost and its contents are proved by secondary evidence, that rule is equally applicable. Beall v. Dearing, 7 Ala. 124, 128. It is true that the witness did not testify as to any attestation or acknowledgment appearing on the face of the deed, but that was a matter of no consequence, since the reservation in favor of the grantor was equally effectual no matter how defective the deed may have been as a grant of the le *402 gal title. . In such a case the lapse of 20 years, with possession in the grantees, presumptively perfected a conditional legal title in the grantees, but it did not impair the right of reverter reserved in the grantor. [6, 7] In view of the positive testimony in support of the deed, and the absence of any testimony to the contrary, coupled with the inherent probabilitiés of the case, we are led to the conclusion that the respondent has shown that she is the owner of an interest in the land in suit — -an interest which will vest in her as an estate in fee simple whenever the land shall cease to be used for school purposes, according to the terms of the grant. Lyford v. Laconia, 75 N. H. 220, 72 Atl. 1085, 22 L. R. A. (N. S.) 1062, 139 Am. St. Rep. 680; 10 R. C. L. 652, § 8. The judgment of affirmance will be set aside, and the decree of the circuit court will be reversed, and a decree will be here rendered in favor of the respondent, establishing her conditional interest in the land, as above indicated. Reversed and rendered. ANDERSON, C. J., and McOLELLAN and THOMAS, JJ., concur. Footnotes [1] (S^jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2] <§z=>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes