Nashville, Chattanooga & St. Louis Railway Co. v. Hammond

COLEMAN, J. This is a statutory action- of ejectment, instituted by appellees to recover a certain parcel or strip of land described in the complaint. The record proper does not contain any plea of the defendants. The judgment entry is, “come the parties by attorneys and issue being joined, thereupon came a jury,” &c. The presumption is that issue was joined upon the general issue. There is a recitation in the bill of exceptions “that issue was joined upon the pleas of the statute of limitations of twenty “years and of ten years, and not guilty.” Pleadings and the action of the court upon them do not constitute a part of the bill of exceptions. They should appear in the record proper. — Powell v. Plenry, 96 Ala. 412; Beck v. West & Co., 91 Ala. 312; Powell v. State, 89 Ala. 172 ; Steed v. Knowles, 97 Ala. 573. Where it is perfectly clear from the entire transcript that the case was tried upon other issues than that of the general issue, although the pleadings did not show them, this court has reviewed the rulings of the primary court, growing out of such issue. — R. & D. R. R. Co. v. Farmer, 97 Ala. 141. [199] The plaintiffs claim title by mesne conveyances from Richmond Hammond. The evidence shows that Richmond Hammond went into possession in the year 1851, and that introduced by the plaintiffs tend to show that he and those who claim under and through him by regular conveyances have been in continuous possession ever since. The court did not err in admitting the instrument, dated in the year 1851, signed by Barker, which purported to convey the lands to Richmond Hammond. It was offered merely as color of title. The grounds of objection are not stated, and when considered in connection with the proof that Richmand Hammond went into possession in the year 1851 under his purchase .from Barker, we can see no objection to it as evidence of color of title. The proof of the loss of the original deed, from Richmond Hammond to W. C. Hammond, dated in 1861, was sufficient to authorize the introduction of a certified copy. The court did not err in admitting the certified copy of the conveyance recorded in the probate office. There was no error in admitting in evidence the deed of W. C. Hammond, executed in 1872, to John D. Hammond and his wife, Fannie Hammond. The acknowledgment in some respects may have been defective, but the signature and certificate of the magistrate was sufficient as an attesting witness. — Torrey v. Forbes, 94 Ala. 135; Merritt v. Phenix, 48 Ala. 90; Sharpe v. Orme, 61 Ala. 268 ; Rogers v. Adams, 66 Ala. 600. It was shown at the trial that he was then dead, and his handwriting and the genuineness of the signature was fully established . Declarations of a party in possession of land, of the character in which he holds, made in good faith, are admissible in evidence upon an issue of disputed ownership, no matter who may be the party to the litigation.— Daffron v. Crump, 69 Ala. 79; Jones v. Pelham, 84 Ala. 210 ; Humes v. O’Bryan, 74 Ala. 64 ; Lucy v. Railroad Co., 92 Ala. 250; Steed v. Knowles, 97 Ala. 573. The declarations of W. O. Hammond offered in evidence come within this rule. The defendants’ evidence tended to show that W. C. Hammond agreed in parol that, if plaintiffs would grade their road on a certain line, he would give them the right-of-way ; that in pursuance of this agreement the defendants and those from whom [200] they derive title constructed their railroad on the line designated; that they took possession of the right-of-way, one hundred feet in width, under said agreement in the year 1854, and have held adverse, continuous possession ever since, claiming the same in their own right. This evidence is controverted by the plaintiffs, both as to the agreement and as to the possession. The roadbed is not sued for, but the complaint embraces the land within fifty feet from the centre of the track and to the margin of the road-bed. The charge given by the court, and the instruction given for the plaintiffs, though excepted to, are not in the record, and we can not review them. Only the charges requested by the defendant and refused by the court are before us and subject to review. Titles to land do not pass by a mere parol gift, and possession under a parol gift for a period of time less than ten years of adverse holding can not defeat a recovery by the alleged donor or grantor, holding the legal title. The plaintiffs’ evidence showed a legal title by regular conveyances from W. O. Hammond, and possession thereunder for ten years. In such cases the burden is on the defendant to sustain the claim against plaintiffs’ paper title, acquired by conveyance and possession. — Steed v. Knowles, 97 Ala. 573. The first charge refused is not clearly stated. As we understand it, the legal proposition is, that if the defendants were in adverse possession in 1856 or 1857, no subsequent possession of plaintiffs, of whatever character or length of time, could divest the defendant of any right acquired by their adverse possession held during these years. Charge No. 2, refused, asserts the law contrary to what has been stated. It is faulty for the further reason that under it “more than ten years” of adverse holding is necessary to give a perfect title. Charge No. 3 is misleading, and for this reason might have been refused. It is faulty in this, that it asserts that a grant of the right-of-way to a railroad, without description, implies that the grant embraces a width of one hundred freet. In condemnation proceedings the statute limits the right-of-way to such “lands as may be necessary, not exceeding one hundred feet in width.”— Code of 1886, § 1580, subdiv. 8 ; Ala. Midland Ry. Co. v. Brown, 98 Ala. 647. Charge 4, invades the province of [201] the jury, and asserts a contrary proposition to that declared in this opinion. Charge No. 5 was misleading, and clearly invaded the province of the jury. This charge is also subject to the criticism placed upon charge 2, in that it requires an adverse holding of “more than ten years.” It does not assert the law applicable to the facts of this case, where it appears the defendant had no paper title, and to defeat plaintiffs’ recovery, it was necessary to show a legal title acquired by adverse possession. The proposition of law asserted in charge 6 is contrary to the principles declared in this opinion, and is further objectionable, in that it assumes as true a fact controverted — that William Hammond did offer to give the right-of-way in consideration, &c. • A charge which instructs the jury that their verdict must be controlled by “a preponderance” of evidence may be refused.— Vanderventer v. Ford., 60 Ala. 610; Acklen v. Hickman, Ib. 568 ; Streetv. Sinclair, 71 Ala. 111. Charges 7 and 8 ignore the evidence tending to show continuous possession by plaintiffs from and after 1876 to 1891, a period of more than ten years. In addition, the evidence shows that W. C. Hammond executed a deed in the year 1872, and not 1876.' Charges 9 and 10 were properly refused. They are argumentative and misleading, and invade the province of the jury. The uncontroverted evidence shows that the road was not constructed through, for about a quarter of a century or more, after the line was run out and staked. The plaintiffs, if their testimony is believed, exercised many acts of ownership not predicated in the charges. We find no error in the record. Affirmed.