Wainwright v. Marbury Lumber Co.

McCLELLAN, J. [1] Statutory ejectment, instituted by appellee against appellant. The former appeal is reported in 202 Ala. 266, 80 South. 352. After reversal on that appeal, John B. Wainwright was stricken as a defendant, certain lands were eliminated, and defendants withdrew their disclaimer, and all pleaded the general issue. The record title to all the land claimed in the amended complaint was shown to be in the plaintiff. The defendants relied alone, upon adverse possession without color of title to expand an asserted actual possession beyond the area of actual occupancy as that possession is defined in the hooks. Chastang v. Chastang, 141 Ala. 451, 459, 37 South. 799, 109 Am. St. Rep. 45; McDaniel v. Tenn. Co., 153 Ala. 493, 497, 45 South. 159; Bowles v. Lowery, 181 Ala. 603, 607, 62 South. 107. In order to make a prima facie case, for submission to the jury, of adverse possession without color of title, the party asserting such adverse possession as the basis of his claim of title must adduce evidence directed to “defining” the area or areas so claimed to have been in actual possession for the period requisite to divest title. Bowles v. Lowery, supra. An examination of the whole evidence touching the defendants’ assertion of title by adverse possession fails to disclose any evidential basis for the jury to conduele “possessio pedis of a definite, particular piece or area -within that sued for.” Bowles v. Lowery, supra. If it be conceded that anyone or more of the defendants exercised acts of possession over parts of the land, still no issue for submission to the jury was projected thereby unless evidence tending to “define” the area or areas actually occupied was presented; and this condition to the creation of such an issue is not afforded by any evidence directed to the designation of the particular area or areas of which actual possession was taken and maintained by any one or more of the defendants. The plaintiff was therefore entitled to the general affirmative charge. [2] There was no error in admitting, over defendants’ objection, 'the several deeds through which plaintiff traced its record title to the lands in suit. The view of the defendants was that these conveyances were void because lands described therein were adversely held at the time of "their execution and delivery. At the stage of the trial this objection was taken, there was no evidence of the basis for the objection. The burden of establishing, at least prima facie, the basis of the objection, was upon the objector. *560 First Nat. Bank v. Johnson, 190 Ala. 566, 568, 67 South. 234. Had the evidence later afforded prima facie justification of the objection, the benefit of the rule of law relied upon could • and should have been claimed through appropriate requests for instruction of the jury. Moreover, as already stated, the evidence was wholly insufficient in its essential effect of indicating, when referred to any point of time, the particular, definite area or areas claimed by defendants to have been adversely held. The sporadic cutting of timber shown by this evidence without sufficient evidential reference of such acts to any definite, particular area, was insufficient to institute an issue of fact requiring the jury’s decision. Chastang v. Chastang, supra. There are matters of practice suggested against review of the subjects treated and decided. The view prevailing renders unimportant the consideration of these' suggestions. The judgment is affirmed. ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.