Alexander v. Wheeler

STONE, C. J. After proving title by Government patent to Arthur Alexander, defendant’s ancestor, granting to him the lands in controversy, plaintiff offered in evidence what on its face purported to be a deed from said Arthur to him, conveying the lands sued for. This deed appeared to be more [171] than thirty years old, and purported to have subscribing witnesses. It was offered in evidence without proof of execution. “ The defendant objected to said paper writing being read in evidence to the jury, o.n the ground that its execution was not proved.” This objection, being on a specified ground, was a waiver of all other grounds. — 1 Brick. Dig. 887, § 1194; Massey v. Smith, 73 Ala. 173. The objection, as made, was rightly overruled. Deeds thirty years old are admissible without proof of their execution.- — 1 Greenl. Ev. § 145 ; White v. Hutchings, 40 Ala. 253; Sharpe v. Orme, 61 Ala. 263; Bernstein v. Humes, 75 Ala. 241. Other questions might possibly have been raised as to the actual date of the deed, in fixing its age, and as to its custody, in determining its genuineness. These were not raised ; and hence we must suppose the paper came from the proper custody — Wheeler produced it — -and that it bore the marks of age. The verdict of the jury was sufficiently specific as to the nook, about one acre, in the north-east corner — the part separated from the tract by Little Terrapin creek. It is also sufficient as to the strip five feet wide on the wrest side of the tract, extending from the north-west corner to the little’creek. For these only did the court give judgment in favor of the plaintiff. The nook in the north-east corner is so described in the disclaimer — cut off from the land sued for by Little Terrapin creek — as that the sheriff can find no difficulty in putting the plaintiff in possession of either of these pieces. The other finding of the jury — “ the strip lying on the north boundary of the eighty, being one acre and a half, more or less” — -is void for uncertainty. The plaintiff consented that no judgment should be rendered on this indefinite finding, and none was rendered. This insufficient finding being eliminated, the Circuit Court did not err in overruling the motion in arrest of judgment. The real question in this case was, whether Alexander acquired and occupied the fragments of land in asserted independent right, or by permission and in subordination to the plaintiff’s legal title — -whether Alexander took possession, and held the land claiming it as his own, or whether he entered under a license to occupy, granted by Wheeler, with no intention to part with the title. The rules for determining this question, so far as the law bears upon it, have been so fully discussed, that we need not again travel over the ground. Brown v. Cockerell, 33 Ala. 38; Alexander v. Wheeler, 69 Ala. 332; Humes v. Bernstein, 72 Ala. 546; Bernstein v. Humes, 75 Ala. 241. There appears to have been no dispute in this case, that the parts of the tract in controversy are included in the west half of the north-east quarter, and were, [172] consequently, part of plaintiff’s original freehold. When this case was before us on former appeal — Alexander v. Wheeler, 69 Ala. 332 — we said : “ The quo animo, or intention with which possession is taken and .held by a defendant, must always constitute an essential consideration. Hence, if a partition fence be extended by one of two adjacent owners, so as to embrace within his inclosure a portion of his neighbor’s land, through mere inadvertence, or ignorance of the location of the real line, or for purposes of convenience, and with no intention to claim such extended area, but intending to claim adversely only to the real or true boundary line, wherever it might be, such possession would not be adverse or hostile to the true owner. There can be no adverse possession, without a coincident intention to claim title.” There is some testimony tending to show that Alexander went into possession for a temporary purpose, and with plain: tiff’s permission. Charges one and two, asked by defendant, ignore this phase of the testimony, and, for that reason, were rightly refused. Charges three and four erroneously assume that, in suits for the recovery of land, plaintiff must fail, unless he shows title and a right to recover all that is claimed in the complaint. Charge number five, asked by defendant,ought to have been given. Alexander and Wheeler were at issue in their testimony, in reference to the one acre of land in the north-east corner. Alexander testified, that it was a verbal exchange, or mutual sale, and that his father took and held possession under asserted ownership; and that he, the witness, had succeeded to his father’s possession, and also held in his own right. Wheeler testified it was a mere consentive, temporary exchange of use and occupation. The testimony of the one tends to prove an adverse holding; of the other, a mere permissive occupation. The charge was justified by the defendant’s phase of the testimony; and he had the right to have its probative effect passed on by the jury. — Collins v. Johnson, 57 Ala. 304; Vanderveer v. Stickney, 75 Ala. 225. We find no other errors in the record. Reversed and remanded.