Baucum v. George

BRICEELL, C. J. — The title of the appellee to the premises in controversy being derived from the sheriff’s sale under execution against Yarborough, it was necessary to show that, at the time of the sale, or at some time when the lien of the judgment would attach, Yarborough had such title as was the subject of levy and sale. His possession, áeeompanied by acts indicating ownership, we're admissible evidence for that purpose (Badger v. Lyon, 7 Ala. 564); and his declarations, explanatory of the possession, were also admissible; but not declarations narrative of a past transaction, extending beyond an explanation of the possession. It is within this latter class, the declaration of Yarborough, that he had bovght the land, is supposed to fall. The line between the two classes of declarations is not always distinct; but we are of the opinion this declaration was explanatory of the possession, showing that it was under claim of title, and not merely permissive, or in subordination to the title of another. Nelson v. Iverson, 17 Ala. 216; Garey v. Terrell, 9 Ala. 206; McBride v. Thompson, 8 Ala. 654; Perry v. Graham, 18 Ala. 822. The record offered in evidence certainly discloses an existing judgment against Yarborough, in favor of Hudson, but partially satisfied, which the Circuit Court had jurisdiction to render ; and to its admissibility we are unable to discover any substantial objection. To support the sale of the sheriff, it was necessary to show a judgment against Yarborough, andan execution issuing thereon. — Lewis v. Gorgnette, 8 Stew. & Port. 184. When a record, or an office paper, is lost or destroyed, if its former existence is satisfactorily shown, secondary evidence of its contents will be received. Sometimes, existence and contents may be presumed, if the record is -ancient; but, in all cases, it is, like other documents, the subject of secondary evidence, of the highest grade the party can introduce. — 1 Greenl. Ev. § 509. More than twenty-four years had elapsed after the issue of the execution against Yarborough, the sale by the sheriff, the execution and registration of the deed, reciting the execution, the levy, and sale. These are facts having a strong tendency to show the existence of the execution; and when the paper is not found in the office of the clerk, its proper place of deposit, a less degree of corroboratory evidence of existence and contents is necessary, than if the transaction was more recent. The memoranda of the execution, its levy, and the sale [267] under it, were made by Lawson in the course of official duty; are a mere register of facts contemporaneously occurring, which he had no interest to misrepresent; and being identified, were properly received as evidence. — 1 Greenl. Ev: § 115 ; 1 Whart. Ev. § 238. Lawson was not incompetent to make the levy and sale under the execution,'by reason of his relationship to the assignee of the plaintiff, Hudson. The statute then of force limited the incompetency of a sheriff, to cases in which he was a party in interest. — Olay’s Dig. 159, § 2. No one of the objections to the memoranda, or to the evidence of Lawson, was well taken. A plaintiff in ejectment, or in the corresponding statutory real action, must recover upon the strength of his own title— he must show in himself a present right of entry and possession, without regard to the character of the defendant’s possession. When he relies upon a conveyance from another, there must be evidence that, at the time of the conveyance, there resided in the grantor a legal title to the lands. The lands in controversy, described according to the government survey, were by the sheriff conveyed to Douglass, and, with the exception of three acres, by Douglass to Hill. There was evidence having a tendency to show that Yarborough, the defendant in execution, had, at and prior to the sheriff’s sale, a legal title to the lands, subject to levy and sale. His prior possession, and acts of ownership, were evidence of such title, for the consideration of the jury, dependent for its sufficiency upon the strength and character of opposing evidence. This title passed to Douglass, by the conveyance from the sheriff, and passed by his conveyance to Hill. The conveyance from Hill to Lea was, therefore, properly admitted as a link in the chain of George’s title, if it conveys the lands in controversy. The only description of the premises granted, found in it, is “ the Douglass Gold Mine, in Talladega county, Alabama; ” and it was proposed, by parol evidence, to identify the lands in controversy, as known by that designation. Ambiguous descriptions of lands in conveyances are open to explanation by parol. The familiar illustration given in the books is, when an estate is granted by the designation of Black-acre, parol evidence is received to identify the premises known by that name.' — 2 Whart. Ev. §§ 942-3; Clements v. Pearce. 63 Ala. 284. The deeds from Curry to Geoige, and from Wilson to him, not having been recorded within twelve months after execution, were not self-proving under the statute (Code of 1876, § 2194); and without proof of execution, ought not to have been received in evidence. — Sharpe v. Orme, 61 Ala. 263. The single objection to the admissibility of the deed from [268] Harrell to Wilson (and we- can consider no other), was the want of proof of execution. It was executed, acknowledged and recorded, in 1843, in conformity to the statute then of force, by the terms of which it was self-proving. — Clay’s Dig. 151, §1. Notoriety was admissible to identify the lands in controversy, as known by the designation of “ Douglass Gold Mine.” The evidence of the witness Thomasson, as to the declaration of Morgan, was not of that character — it was merely narrative of the manner in which Hill obtained title, irresponsive to the question propounded, and ought to have been excluded. The declaration made by Hill to Harrell, before the conveyance to Lea, though it has in it no element of estoppel, was in disparagement of his title, and the court erred in excluding it. The declarations of a vendor, in disparagement of his title, are admissible against a subsequent vendee.— 1 Brick. Dig. 834, § 433. The deeds from Bellamy to Harrell, and from Harrell to Baucum and Jenkins, were inadmissible, for any other purpose than to show color of title, an ingredient of adverse possession.— Willingham v. Brown, 38 Ala. 311. The declaration of Harrell, made at the tax sale, that he was purchasing as the agent of Hill, was self-disowning, and admissible as against his subsequent vendee. There was no room for the introduction of evidence of Harrell’s character for truth and veracity, and the court properly refused to complicate the case with that inquiry. We do not deem it necessary to review the several exceptions to charges given and refused. They present no question of difficulty or importance, and are covered by repeated decisions of this court. If the fact is, that Harrell entered into possession as the agent of Hill, the possession, whether held by him or his tenants, could not become adverse as to Hill, or those claiming under him, until there was a disclaimer of his title, and the assertion of a hostile title brought home to Hill, or his vendees. Whenever a relation of privity exists, such as that of principal and agent, or of landlord and tenant, by virtue of which possession is originally taken, it can be dissolved, and the possession converted into hostile or adverse to the principal or landlord, only by a clear, positive, and continuous disclaimer and disavowal of his title, and the unequivocal assertion of an adverse right. — Harrison v. Pool, 16 Ala. 167; Benje v. Creagh, 21 Ala. 151; Knight v. Bell, 22 Ala. 198. It is not necessary that the claim of right or title should be good, or believed to be good. It is enough that there is a real, bona fide purpose to assert and rely upon it as hostile or adverse to that of the real owner, and as the right to the possession. — Herbert v. Hanrick, 16 Ala. 595-6 ; [269] Hinton v. Nelms, 13 Ala. 222. The possession must be as definite as the character of the land will permit; but occupancy of a part, with color of title, defining the extent of the claim, is deemed to extend to the boundaries expressed. Ellicott v. Pearl, 10 Peters, 412. Payment of taxes, connected with an actual possession, is evidence tending to_ show the extent of the possession. — Ivy v. Stein, 49 Ala. 514. We do not extend this opinion, by inquiring whether the rulings of the Circuit Court were in conformity to, or violative of these settled principles; they can be observed on another trial. For the errors pointed out, the judgment is reversed, and the cause remanded.