McInerny v. Irvin

SOMERVILLE, J. The action is one of trespass to realty — guare clausum fregit — the premises alleged to have [276] been trespassed on being described as certain parts of lots 203 and 204 in the town of Decatur. The defendant interposed the plea of not guilty to the alleged trespass on lot 203, and the special plea of liberum tenementum as to lot 204. 1. The effect ol the plea of liberum tenementum is to assert title to the loeus in quo in the defendant. It raises the question of title, and evidence of paramount title in either jiarty litigant is admissible precisely to the same extent as it would be under the general issue. An action of trespass of this nature being on the actual possession of the plaintiff, if the defendant proves in himself á superior title, the damage done to the premises can be no injury to the possessor, because he has no right.—Wilson v. Bibb, 25 Amer. Dec. 118; Dean v. Fail, 8 Port. 491; 2 Greenl. Ev. § 626. The plaintiff having proved possession, the burden is then cast on the defendant to establish a better title in himself, or else his plea fails. 2. There was clearly no error in admitting in evidence the deed from Tisdale to the plaintiff, bearing date July 15th, 1871. It is true that the execution of this paper was not acknowledged until February' 9th, 1887, about sixteen years after it was signed, and something over a month before the present action was commenced. But it was offered in connection with the alleged fact of the plaintiff s actual possession under it for nineteen years prior to the date of the trial, and was certainly admissible as color of title to define the extent of such possession, and to characterize its boundaries. Bohannon v. The State, 73 Ala. 47: Hughes v. Anderson, 79 Ala. 209; Wilson v. Bibb, 25 Amer. Dec. 118; Molton v. Henderson, 62 Ala. 426. 3. Ten years of adverse possession under such a muniment of title, with the exceptions provided for by the statute, which have no application to this case, “arms such holder with all the • powers of offense and defense, which ail unbroken chain of-title confers.” —Barclay v. Smith, 66 Ala. 230. Its effect would be to cut off and extinguish any superior legal title which the defendant may have had, if any such he ever acquired, by his chain of title from Tisdale, dating back to the latter’s deed to Sutton under whom the defendant claims, thus converting the actual adverse holder into the true owner, with a perfect title.—Bicknell v. Comstock, 113 U. S. 149; Crockett v. Lashbrook, 17 Amer. Dec. 98; 1 Amer. & Eng. Ency. Law, 301-303. And this assertion of title in the plaintiff could be supported under the issue of-freehold title, raised by the special* plea of liberum tenementum, without the necessity of a replication to such plea on the part of the plaintiff. [277] 4. It was competent for the defendant to impeacli the credibility of the witness Minnie King, by proving that her general character, or reputation, was bad. It was not necessary to restrict such inquiry to reputation for truth and veracity, although it must be admitted, that evidence bearing especially on the latter inquiry would be more satisfactory for the purpose of impeachment, and, of course, admissible by either party. The practice on this subject was settled in this State as far back as Ward v. The State, 28 Ala. 53, decided in the year 1856, where a majority of this court held that, in impeaching a witness, the inquiry is not limited to his general character for truth, but his lad eharaeter generally may be proved, as a fact going to his credibility. This ruling was followed in DeKalb County v. Smith, 47 Ala. 407, and was again re-affirmed in Holland v. Barnes, 53 Ala. 83, and Motes v. Bates, 80 Ala. 382. The practice in our trial courts has been uniformly established in conformity to these rulings, and its propriety has passed beyond the pale of further discussion. In refusing to permit the witness to be impeached by evidence of her alleged bad character for chastity and virtue, or by showing that she was a common prostitute, the Circuit Court but followed the settled rule of law announced by this and other courts on the subject.—Holland v. Barnes, 53 Ala. 83; Evans v. Smith, 17 Amer. Dec. 74; note p. 77, and cases cited, The rulings of the Circuit Court are all, in our opinion, free from error, and the judgment is affirmed.