Bernstein v. Humes

STONE, J. When this case was before in this court, 60 Ala. 582, 602, we said : “To avoid a deed made by one out of possession, it is enough if there be one in adverse possession, exercising acts of ownership, and claiming ■ to be rightfully in possession. Color of title is not necessary.” We fortified that opinion by a citation of many authorities. Possession, to have this effect, must be .actual, not constructive. And it must be marked by acts of dominion, such as the erection of houses, making valuable improvements, clearing lands, claiming ownership, or by some other act, evidencing that the possession is under claim of right. Putting a tenant in possession, who erects a house thereon, and continues to occupy for a series of years, is, unexplained, a possession under claim of right. Much less than this would be sufficient evidence in many cases of adverse holding. Actual possession is an open, patent fact, which furnishes evidence of its own existence. It is notice to all men contracting in reference to the property thus possessed, and is equivalent to actual notice of title, legal or equitable, or of the claim, under which such possession is held.-2 Brick. Dig. 519, § 181. In paragraph numbered 4J of the general charge, the Circuit Court correctly declared that “no one can sell land which — 265 — another has in adverse possession under claim of right.” He erred when he informed the jury that this rule does not “apply, when the true owner sells the property in ignorance of such adverse holding.” The natural and necessary effect of such oharge was, to give the jury to understand that to render the rule applicable, the seller must have had notice or knowledge of the adverse holding, other than the actual possession gave him. The concluding clause of paragraph 5 of the general charge is equally erroneous. And charges asked, numbered 1 and 1 B, should have been given. The question of outstanding title in another. It is true the record shows fully that the property in controversy, if embraced in the tract of the Huntsville Hotel Company, was under mortgage or trust deed to another, to secure bonds and accrued interest, which had' matured when this suit was brought. Hence, the hotel company was in default. The mortgage or trust deed contains the following clauses: “But nothing herein contained shall be construed so as to prevent the Huntsville Hotel Company from using the building for hotel purposes, renting, and receiving payment therefor, of any part of such hotel building, not necessary for the hotel, nor from disposing of any part of the lot or grounds upon which said building is situated, which may not be required for the use of said hotel, nor from using any furniture, stores or fixtures which may be necessary in conducting the business of said company, or from collecting and paying out all or any moneys that now is, or hereafter may be due said company, provided that no default shall have been made in the payment of the interest and • principal of any of the described bonds. . . . . Upon the following trusts, that is to say : In case the said Huntsville Hotel Company shall fail to pay the principal, or any part thereof, or any of the interest on said bonds, at any time when the same may become due and payable, according to the tenor thereof, when demanded, then after sixty days from such default, upon the request of the holder of such bonds, the said Honegan and Hammond — [grantees and trustees] — and their successors in such trust, may enter into and take possession of all or any part of said premises,” etc. It will be seen from these extracts from the trust deed, that the right of the Huntsville Hotel Company to retain possession of the property did not terminate ipso facto with their default in paying the principal or interest of the bonds. There must have been, first, a demand of such payment, second, a request of the holder of such bonds, and, third, a delay of sixty days after such default, before the trustees would be authorized to enter into and take possession. None of these steps are shown to have been taken, and therefore it is not shown that the right — 266 — of the hotel company to possess and occupy has ever terminated. This was a valuable interest, a legal estate, and was subject to levy and sale under execution. The purchaser of such interest, until it is determined, acquires such estate as will support ejectment. Brock v. Yongue. 4 Ala. 584; Badger v. Lyon, 7 Ala. 564; Smith v. Taylor, 9 Ala. 633; Br. Bank v. Fry, 23 Ala. 770; Knox v. Easton, 38 Ala. 345; 1 Brick. Dig. 905, § 207. The Circuit Court did not err in holding there was a failure to show an outstanding title in a stranger which could defeat this action. It is settled law — too well settled to require a citation of authorities — that in an action of ejectment, or statutory real action, plaintiff can not recover unless he shows a sufficient legal title in himself, or a right to the possession. The defendant may have no title, may be a mere trespasser; still, if he has not entered as the tenant of plaintiff, and thus recognized his title, it is sufficient for his defense that plaintiff shows no right to recover. An older possession often proves title against one who shows only a later possession, but this rests on the presumption that one who has had a prior possession of land, exercising acts of ownership and control, is treated as the owner against such subsequent occupant, unless the latter shows title in himself, or some other, or unless he has held the possession adversely for a sufficient length of time to bar the plaintiff’s right of entry. In this case the laboring oar was with the plaintiffs, Humes et al. The suit is to recover a part of lot 17 in the city of Huntsville. The deeds through which plaintiffs attempt to deduce their title, describe lot 17 as containing a half acre. It is bounded north on Clinton street, and west on Gallatin street. If the lot is a square, each of its four sides is about one hundred and forty-seven feet and eight inches in length. The plaintiffs in this case do not, as we understand the case, rely on previous possession in those under whom they claim. They rely on a documentary chain of title, commencing as far back as 1816. There was then a deed from Pope to Cannon, conveying lot 17, town of Eluntsville, fronting Clinton and Gallatin streets, described as “ a certain parcel or half acre of land.” Deed, December 18th, 1818, from Cannon to Price, conveying same lot by same description. Deed, November 23rd, 1822, from Price to Stokes, conveying same lot by same description, “with the reserve of t/wenty-fvoe feet fronting on Gallatin street where the brick house stands, running back seventy four feet nine inches, at right angles.” Deed, February 4th, 1823, from Stokes to Eogers, conveying same lot with same description, and same reservation. Deed, January 31st, 1826, from Eogers to Jamison, conveying same lot with same description and same reservation. Title is thus traced, and — 267 — vested in Jamison, of all of lot seventeen, except tbe part reserved, described above. Tbe title to the reserved part, having tbe brick bouse on it, is left in Price, so far as this record informs us; or, rather, tbe record fails to inform us tbe title to that part ever got out of him. The next step in plaintiffs’ chain of title is a sheriff’s deed, dated April 2nd, 1832, conveying to Elliott “part of lot seventeen, fronting Gallatin street fifty feet, extending eastwardly seventy-three feet, as the property of said Isaac Jamison, etc.” Deeds, conveying lands by similar description, from Elliott to Sadler, dated March 4th, 1833 — from Sadler to Horton, April 7th, 1834, — Horton and Kobinson to Caldwell, August 18th, 183°', — Caldwell to Yeat-man and wife, February, 22d, 1839, — Yeatman and wife to-Erwin, September 7th, 1840, — Yeatman and wife to Turner, February, 23rd, 1839, — Turner, trustee, to Wood, October 1st, 1844, conveying several pieces of property, and among the rest, “ part of lot bought by said Caldwell of Kodah Horton and wife and John Kobinson and wife, and by them conveyed to the said Caldwell; the above property embraces, and is intended to embrace the establishment in the town of Huntsville known as the Bell tavern, now occupied by the said Agnes Yeatman, and képt by her as a hotel.” From Wood and wife to Kinkle, October 21st, 1847, after describing other lands (the hotel property), conveying same lot with same description, as that found in sheriff’s deed to Elliott — Kinkle to Lane & Davis, June 5th, 1851, conveying several lots, and the same lot described as in sheriff’s deed to Elliott. From Davis to North Alabama College, March 4th, 1852, conveying several lots and the lot as described in the sheriff’s deed aforesaid. From North Alabama College to Huntsville Hotel Company, April 16th, 1857, conveying several lots, and with them part of lot seventeen, described as above. Deed of H. S. marshal to Walker, February 7th, 1870, conveying lots 17, 18, 25 and 26, and the improvements thereon; and Walker to plaintiffs, May 22nd, 1871. The chain of title shown by plaintiffs left all of lot 17 in Jamison, except the reserve of twenty-five feet front on Gallatin street, running back seventy-three feet, and except the fifty feet front on Gallatin street, running back seventy-three feet, conveyed by sheriff to Elliott. Defendant’s chain of title to that part of lot 17, which it is alleged was conveyed by sheriff to Elliott, and fronting on Gallatin street fifty feet, is as follows': Deed from Mrs. Hill to Battle, April 9th, 1858, conveying part of lot 17, “ commencing at the north-west corner of the little brick house on Gallatin street, running thence eastwardly, at right angles with said street, and parallel with Clinton street seventy-four and one-half feet — thence at right angles to Clinton street — thence — 268 — west to tlie north-west corner of said lot, thence south along Gallatin street to the beginning, being about sixty-seven feet, containing not quite one-eighth of an acre;” a second piece, lying east of above, not necessary to be here described; and “ also another lot of land lying in said town, being part of said lot number seventeen, bounded on the north by lot first above described, on the east by the lot last above described, on the south by the Bell tavern lot, on the west by said Gallatin street, supposed to front on said street about twenty-five feet, and to run back east about seventy-four feet.” Deed of Battle and others to Chappell, December 20th, 1861, conveying same premises, with same description, with disclaimer of warranty as to piece last above described. Deed from Chappell to Bernstein, December 21st, 1861, conveying same lands, with same description, and same disclaimer of warranty. These conveyances tend to show the following facts: That the north-west corner of the little brick house stood sixty-seven feet south of the north-west corner of lot 17; that the lot on which the brick house stood fronted twenty-five feet on Gallatin street; that Bernstein’s entire front on Gallatin street — including the little lot on which the brick house stood — was sixty-seven feet plus twenty-five — ninety-two feet, and that adjoining to it on the south was the Bell tavern property; thus showing that the Bell tavern property extended north on Gallatin street to a point ninety-two feet south of the north-west corner of lot seventeen. The property recovered in this suit is south of that point, and hence, Bernstein fails to show any title to the property in controversy. There is great contrariety, if not conflict in the testimony, as to the' particular locality or spot on which the little brick house stood. The probable great length of time since its demolition or removal, may, to some extent, account for this. We attach more importance to the expressed- distances in the deeds, than to the recollection of witnesses. But, as we have said, the plaintiff must recover, if at all, on the strength of his own title, not on the weakness or absence of his adversary’s. It is contended for appellant that the deed from the sheriff to Elliott, and those which follow it, are so indefinite in the description of the property sold and attempted to be conveyed, as to be void for uncertainty. This can hardly be affirmed, as matter of law, on the face of the deeds. True, they speak of part of lot seventeen, showing that the whole of. that lot was not embraced in it. But we can not judicially know the extent of that lot’s front on Gallatin street. Its entire front on that street, looking alone to the deed, may have been only fifty feet. Or it may be that Jamison, at that time, owned a defined part of the lot fronting on Gallatin street, measuring fifty — 269 — feet, and known “as the property of said Isaac Jamison.” If so, then outside proof of such fact would enable any competent surveyor to determine and locate the land sold-. We are speaking of the deed itself, without reference to extrinsic proof. So-considered, it can not be pronounced void on its face. Considered in connection with the extrinsic proof, the question is a very different one. Lot 17 fronts on Gallatin street about one hundred and forty-seven or eight feet. All of this property was conveyed to Jamison, except about twenty-five feet on which the brick house stood. ILe thus owned about one hundred and twenty-two feet on Gallatin street. The bill of exceptions states it contains all the evidence, and there is-no evidence that the fifty feet front has ever been separated from the residue, or that there was any identification, of any fifty feet, known as the property of said Isaac Jamison. There is an absence of proof that at the time the sheriff sold to Elliott, Jami-son had disposed of any part of lot 17. True, at that time, a part of lot 17 was occupied and claimed by others, probably rightly claimed; but it is not shown that Jamison had conveyed any part of the lot. The part we speak of as being occupied and claimed by others, fronts on Clinton street, and is different from the part, the title to which we are now discussing. Construing the deed from the sheriff to Elliott, and the later deeds which copied its phraseology, in the light of the testimony in this record bearing on the question, we do not think it sufficiently identifies the property. Identification must be established by the proof of facts — facts still existing, or which are shown to have once existed. Opinion or conjecture of wha was intended, will not do.-Miller v. Travers, 8 Bing. 244; Pollard v. Maddox, 28 Ala. 321. In the affirmative charge is the following language: “If you believe from the evidence that Jamison owned lot No. 17, one side of which was on Gallatin street, and that he had previously sold all of said lot on Gallatin street that he owned but the fifty feet, and that that portion was known as the Jamison lot, then you may look to that evidence to guide you to a concluí sion, whether or not the fifty feet fronting on Gallatin street, mentioned in Acklen’s [sheriff’s] deed, included or not the lot, or portion of land described in plaintiffs’ complaint.” This part of the charge was specially excepted to. As we have said, the record affirms it contains all the evidence, and it contains no testimony that Jamison had previously sold any part of lot 17 fronting on Gallatin street. Neither does it contain any evidence that the part of the land in controversy “ was known as the Jamison lot.” This charge, then, was abstract, because some of its predicates are unsupported by testimony. If an abstract charge, though asserting a correct legal proposition,. — 270 — when considered in connection with tbe evidence, must have misled tbe jury, tbis is ground of reversal.-Partridge v. Forsyth, 29 Ala. 200. Tbe finding of tbe jury in tbis case shows tbe jury were misled by tbis abstract charge. Tbe giving of it was, therefore, error. Reversed and remanded. BeioKell, C. J\, not sitting.