DeJarnette v. McDaniel

STONE, C. J. — The chief defense in this case is the statute oflimitations of ten years, or that the defendants and those from whom they derived their possession had been in continuous, adverse possession of the land sued for, for more than ten years before this suit was brought — April 26,1884. Part of the lands, however, have been all the while woodland, of which there was only such possession as partial occupancy under title draws to it. It thus became necessary to put in evidence the title under which their possession had its inception. This consisted of a mortgage of the land made by Mrs. Dicey M. DeJarnette, grand-mother of plaintiffs, and another, executed to Hudson in May, 1854. This mortgage describes the land by section, township and range, but gives no other description. In what county, State, survey or land district the lands lie, is not attempted to be shown in the mortgage. The plaintiffs objected to the introduction of the mortgage in evidence, on the ground of uncertainty and ambiguity in the description. It was then proved that, at the time the mortgage was executed, and for several years before that time, Mrs. Dicey DeJarnette lived on the land; that she and her son lived together upon it until his death in 1854, and that she owned no other lands. This brought the question directly within the rule declared in Chambers v. Ringstaff, 69 Ala. 140. The Circuit Court- did not err in receiving the mortgage deed in evidence. Plaintiffs in this suit are children and heirs at law of Elias M. DeJarnette, who was a son of Dicey M. DeJarnette. As we have stated, he died in 1854. About two years afterwards, his widow and all his children removed from the lands -to the ' State of Mississippi, and have ever since resided there. They have had no possession since that time — say, about twenty - eight years, when this suit was brought — unless what is stated further on was possession. The oldest of the children, plaintiffs in this suit, became twenty-one years old June 9, 1864, twenty years before the present action was commenced. Their title is a deed from Dicey M. DeJarnette to the said Elias M., dated in 1853, in which she reserved to herself the use of the land during her. life. When the family of Elias M., after his death, removed from [220] the land, and to the State of Mississippi, Mrs. Dicey M. De-Jarnette was in possession, and continued to occupy the land until early in the year 1862, when she removed from it, and during the Spring or Summer of that year died. There is no testimony that, after Mrs. Dicey M. DeJarnette removed from the land early in 1862, any one occupied it until 1865, 1866, or 1867. After that time it was occupied as we shall hereafter show. The defendants made title as follows : In 1859 Mrs. Dicey M. DeJarnette and another made a mortgage of the land to Hudson, whose homestead touched the tract mortgaged. This mortgage was to secure a debt to Hudson, and contained a power of sale on default. In 1869, after advertisement, the land was attemqrted to be sold under the mortgage, and Hudson proclaimed himself the highest bidder and purchaser. He made a memorandum of the sale and purchase, but if there was any attempt to make a deed, or to procure a title, the record does not disclose it. Finding an old colored woman, Mary Holmes, in possession, he 'demanded rent of her; she acceded to the demand, paid rent to him, and continued to so pay to him as landlord until she quit the possession, when another tenant came in under the Hudson claim of title, and continued to occupy and pay rent until the land was sold to Milner in 1881. Hudson had died, and the administrator or heirs of his estate became the landlords, and they received the rent. They sold and conveyed to Milner in 1881, and he remained in possession under his purchase up to and including the time when this suit was brought. From the time Mary Holmes went out of possession until the commencement of this suit, the lapse was less than ten years: but from the time she commenced paying rent to Hudson until the writ in this case was issued, was about seventeen years. So, the real issue of merit in this case is, whether the statute of limitations commenced to run against the plaintiffs from the time Hudson commenced demanding and receiving rent from Mary Holmes. The testimony of Richard A. Jones, grandson of Dicey M. DeJarnette and cousin to plaintiffs, and that of Mary Holmes, a colored woman, formerly a slave in the family, tended to show the following state of facts, in reference to the possession of the premises : When said Richard returned from the wTar, he found the place unoccupied. He testified that he requested the said Mary Holmes to go on the place and take care of it for the DeJarnettes, plaintiffs in this suit. She did go into possession. This he did as a friend of the plaintiffs, and without any request or authority from them. About the same time he learned that Hudson claimed to have a mortgage on [221] the land. This was about the Fall of 1866. He further testified that Mary Holmes, while she was occupying the land,, informed him she was paying rent to Hudson. This witness, saw the three posted notices of sale under the Hudson mortgage, and he testified that there was a sale of the land under that mortgage. He wrote to some of the plaintiffs, by letters properly addressed and mailed, informing them of the Hudson mortgage and the sale under it, and he did not recollect ever-receiving any reply to his letters. The mortgage sale was about fifteen years before the bringing of this suit. The testimony tended to show that Mary Holmes commenced paying rent to Hudson about 1867. This is the origin, nature and duration of Mary Holmes’ possession of the land, according to her testimony and that of Richard A. Jones. The testimony of Mrs. DeJarnette, mother of plaintiffs, ■which was taken by deposition, was as follows: When, in 1856, she removed with her children to Mississippi, “she left the lands in controversy in charge of her husband’s mother, Dicey DeJarnette, and Permelia Jones, who was a daughter of said Dicey DeJarnette (Permelia was the mother of Richard A. Jones); and that Permelia Jones resided on lands adjoining the lands in controversy; and that they, Dicey De-Jarnette and Permelia Jones, promised to take care of the lands for witness and the children of Elias M. DeJarnette.” This witness, mother of plaintiffs, further testified as follows “I know nothing further, except that Aunt Mary Holmes lived on the place, and took care of it for me and my children, until she bought a place and moved on it. She was kept on the lands by my husband’s mother after the war. She also lived with us when she was a slave. She continued in possession of the lands for our benefit until she bought a place, as above stated.” These two versions of Mary Holmes’ possession of the land, its origin, nature and duration, are not in harmony. It was neither shown, nor attempted to be shown, either in direct or cross-examination, or in any other way, how this witness, mother to plaintiffs, acquired information as to Mary Holmes’ possession after the war; but no questions are shown to have been raised on this aspect of the case. If the testimony of Richard Jones be true, it would seem that in no sense was Mary Holmes the tenant of plaintiffs, so as to entitle them to notice of her attornment to Hudson. In the case which their testimony tends to prove, if any notice were required (we do not affirm it was), it was enough to notify Richard A. Jones, at whose request he and she testified she entered. On the other hand, if she went on the premises under the direction [222] •of any one representing and authorized to represent the plaintiffs, then her attornment to Hudson did not convert her possession into a holding adverse to plaintiffs, until notice thereof is shown to have been carried home to them. If this last hypothesis is found 'to be true, the doctrine declared in Lucas v. Daniel, 34 Ala. 188, is applicable to and governs this case. — King v. Paulk, 85 Ala. 186; McCarthy v. Nicrosi, 72 Ala. 332; 47 Amer. Rep. 418. It is not for us to speculate •on the relative weight of the opposing testimony. Enough for us that some testimony went to the jury, tending to show that Mary Holmes went into possession under and by authority of the plaintiffs in this suit, or some one having authority to represent them. And if she did thus go into possession, then her renunciation and attornment to Hudson could not render that possession adverse to plaintiffs, unless and until they were notified thereof. We have thus shown that, in one aspect of the tes timón y •in this case, it was not incumbent on defendants to show that the plaintiffs had actual notice that Mary Holmes was holding the possession under Hudson. That aspect or category was the one which the testimony of Richard A. Jones and Mary Holmes tended to establish. If, however, Mary Holmes went into possession under any one having authority to represent the plaintiffs, then, to convert her possession into a holding adverse to them, it was not enough that she attorned and paid rent to Hudson. To make it effective, notice must have been given of such changed allegiance. To meet this requirement, it was testified that Richard A. Jones mailed a lei ter, one or more, properly addressed and postage prepaid, giving notice to plaintiffs of Hudson’s claim and sale. Those letters were •never answered, and there was no proof whether or not they were received. In charge No. 7, given at the instance of defendants, in postulating what was or would be sufficient notice •of such adverse holding, or renunciation of allegiance, the •Circuit Court declared it was sufficient if “R. A. Jones wrote •a letter to plaintiffs informing them of the facts, and of said claim of ownership by Hudson under said mortgage, and placed said letter in the post-office, prepaying the postage thereon, addressed to plaintiffs.” Of course, we suppose it was intended to be understood that the letter should be addressed to the proper post-office of the sendee. The natural interpretation of this language is, that the hypothesized facts amounted to prima facie proof of notice given. In 1 Greenl. Ev. § 40, and n. a, it is said: “If a letter is sent by the post, it is presumed, from the known course in ■that department of the public service, that it reached its des [223] tination at the regular time, and was received by the person to whom it was addressed, if living at the place, and usually receiving letters there.” So, in Whar. Ev., vol. 2, § 1323, is this language : “The mailing a letter, properly addressed and stamped, to a person known to be doing business in a place where there is established a regular delivery of letters, is prima facie proof of the reception of the letter by the person to whom it is addressed.” Each of these standard authors cites many authorities in support of their several propositions. We adopt this rule as eminently convenient in commercial transactions, and hold that, if Richard A. Jones wrote and mailed letters, one or more, as he testified he did, this wasprima facie proof of notice to them of the contents of the letters. Of course, this presumption could have been overturned by proof that the letters were never received. The Circuit Court did not err in giving charge No. 7, asked by defendants. Charge No. 6, given for defendants, is equally free from error, and charges Nos. 10 and 13 assert correct legal principles. The Circuit Court erred in giving charge 14 at the instance of defendants. The fact that Richard A. Jones, cousin of theplaintiifs, or any other relation of theirs, was living near the land during the time Hudson asserted ownership and possession, was not, as matter of law, an evidential factor, which the jury should look to in determining whether plaintiffs had, or ought to have had, notice of Hudson’s claim to the land and its possession. The bill of exceptions states it contains all the evidence, and there is nothing which tends to show that the notoriety of Hudson’s control and asserted ownership of the land exerted, or could exert, any influence in shaping the conduct of plaintiffs, who were living a great way off, and in another State. .In the aspect of this case which we are now considering, the-question was, whether Mary Holmes went into possession of the lands at the instance of any one having authority from plaintiffs to place her there; and in the event she did, whether plaintiffs acquired notice that she had renounced allegiance to them and attorned to Hudson. To this aspect of the case were mainly directed the charges asked by plaintiffs. Charges 3 and 8 asked by them assert correct legal principles, but -it is not perceived they have any bearing on this case. Charge 5 of plaintiffs’ series would tend to mislead,’ and was rightfully refused on that account-. Charge 7 asserts too exacting a rule as to disclaimer or disavowal, when the entry is shown to have been permissive. — Hart v. Kendall, 82 Ala. 144. Reversed and remanded. -