Doe ex dem. Anniston City Land Co. v. Edmondson

DOWDELL, J. Adverse possession of the land in dispute, for the statutory period, was relied upon by the plaintiff for recovery, and by the defendant as a defense. It was the material and vital issue in the case. The assignments of error relate to the rulings of the city court upon the introduction of evidence, and upon instructions given by the court to. the jury. Except as to opinion evidence by experts, it is a cardinal rule of evidence that a witness cannot state his opinion or conclusion on facts, but must state the facts themselves, — 460 — leaving the court or jury trying the case to draw the conclusions. The statement by a witness of a collective fact is permissible, leaving the details, or facts which go to make up the collective fact, to be drawn out on cross examination, if desirable, by the opposite party. The statement of the witnesses Zuber and Noble, that “such acts of ownership were exercised over the land as the nature and character of the land was susceptible of,” was not a shorthand rendering of the facts, or the statement of a collective fact, but a mere opinion or conclusion of the witness. With a description of the 'land and! a statement of the facts relied on as constituting acts; of ownership, the court or jury might well draw a different conclusion from that contained in the statement offered in evidence. The court committed no error in sustaining the defendant’s objection. • Nor did the court commit any error in not permitting: the witness Zuber to testify as to the contents of the map given him by the Woodstock Iron Co. The tendency of this evidence was to show an assertion by the Woodstock Iron Co. of a claim of ownership of the land. A claim of ownership was an essential element of adverse possession. This evidence was pertinent and relevant, and not merely incidental or collateral, to the issue between the parties. The map was the highest and best evidence of the lands contained in it, and in the' absence of a proper predicate, secondary evidence of its contents was inadmissible. The value of the land in dispute was wholly immaterial, and the court properly sustained the defendant’s objection to the testimony offered by the plaintiff as to value. ■ That the defendant was careful to see that timber on his land was not trespassed umr> was irrelevant, and could shed no light on the question of adverse possession of the particular land the subject-matter of the controversy. There was no error in the court’s refusing to let the witness, Mat Clements, testify to that effect, against defendant’s objection. The declaration made by Ben Johnson to his son James F.'that he had sold and given possession of the — 461 — .land in dispute to the Oxford Iron Oo. was purely hear.say evidence and inadmissible. There was no error in the admission in evidence of the paper marked “B.” in connection with the parol explanatory evidence. A sufficient predicate was laid as to the missing portion of the paper “B.” for the introduction of secondary evidence as to its contents. Ben Johnson was one of the attesting witnesses to this paper and he was dead, and so far as the bill of exceptions discloses the other attesting witness was not known. Under this state of the case, there was no error in calling other 'witnesses, than the subscribing witnesses, to prove the contents of the paper. It was competent for the defendant Edmondson to testify to the fact, that he gave one Costner permission 'to cut timber on the land in dispute, for the.purpose of burning coal for the Woodstock iron Co. This evidence was relevant. — Goodson v. Brothers, Admr., 111 Ala. 589. The fact that Costner was dead, did, not affect the ■competency of Edmondson as a witness, the estate of Costner being in no wise interested in the result of the suit, and it is stated in the record that Costner was not ah agent of the Woodstock Iron Co. The deed by Edmondson to the Alabama Mineral Railroad Oo. of a right of way across the land in dispute was an act of ownership and a circumstance tending to show the assertion of a claim of ownership on the part of Edmondson, and to that end was relevant and . admissible. There was no error in refusing to exclude the evidence of the witness Hames “that the defendant Edmondson brought the original patent to the land to him in Jacksonville, Ala., in 1870 or 1872, a few weeks before the Oxford Iron Works were sold under Spradlev’s ■ execution.” The possession by the defendant of the original patent to the land was a circumstance competent for the consideration of the jury on the line of claim of ■ ownership of the land by the defendant. The objection to that portion of the deposition of 'Margaret Ford, wherein she stated that her husband, ■ James Ford “bought this land -(the land in dispute) if rom Ben Johnson in about 1858. It was either in 1858 — 462 — or 1859 that he bought it. I don’t recollect the exact year, but it was somewhere along in there,” was properly overruled on the ground stated in the objection, namely, that it was hearsajr. The statement is made as. of her own personal knowledge of the transaction, and nothing to indicate that it was hearsay. Nor was there any evidence that there was any deed or other written evidence of the transaction deposed to. The plaintiff’s right of recovery was based solely upon title by adverse posession. The court in its oral instruction to the jury among other things charged the jury that, “if plaintiff has not proved adverse possession for ten years then it cannot recover,” and furthermore, that “plaintiff must recover on the strength of its own* right.” These portions of the oral charge were excepted to by the plaintiff, and are here assigned as error. It is. insisted in argument that this charge required the plaintiff to show a perfect title. We do not *so construe the charge. The plaintiff relied upon title by adverse possession, and proof of adverse possession for a period •short of ten years would not authorize a recovery. The charge stated the law correctly as applicable to a right of recovery based on adverse possession. That the “plaintiff must recover on the strength of his own right” is also a correct statement of the law. “The strength of his own right,” means no more than the strength of his own title. His title is the basis of his right of recovery, and consequently the strength of his right, is the strength of his title. The action of the court in refusing the'two written charges requested by the plaintiff, though insisted on in argument as error, cannot be considered b3r this court, the same not having been assigned as error on the record. The written charges given at the request of the defendant, and here assigned as error, are numbered 3, 6, 10, 11, 15, 20, 26, 28, 29, 32, 33, 34, 35, 36, 38, 41 and 42. It is a clear proposition of law, that to entitle the plaintiff to recover, it must show a better title than the defendant’s to the land in dispute, and upon this proposition the burden of proof rests upon the plaintiff. And — 463 — unless the jury can say from tlie evidence in the case,, that the plaintiff has shown a better title to the land, in-controversy than the defendant, it is not entitled to-a recovery. This is what is asserted by charge No. 3,. and it was properly given. The court may at the written request of either party-charge upon the effect of the evidence, where it is free-from conflict or adverse inference. The record sustains the predicate as to facts stated in charge 6, and the giving of the same was free from error. In an -action of ejectment the plaintiff can not recover-unless he had title at the commencement of his suit. This is an elementary principle in such actions, which calls for no citation o-f authorities. Under the -common-law'- form of ejectment, each demise laid, is in nature and effect a separate count. And a recovery may be had upon any one of the several demises laid, if sustained by the proof.. In the present case a number of demises are-laid in different parties, among them one in each of the-following parties, to-wit: Ben Johnson, Oxford Iron Co. and the Woodstock Iron Co. Written -charges 10, 11 and 15, -as-sert the proposition, that if these parties, before the commencement of the suit, had conveyed away their title to the land in dispute, then there -could be no-recovery on the demises laid in them respectively. We-can see no objection to the soundness -of these charges.. No -demise wars laid in the “Anniston City Land and Improvement Company,” and consequently the giving of charge 20 requested by the defendant, if erroneous, was without injury to the plaintiff. No possible injury could result to the plaintiff from an instruction to the jury that one who is not -a parly to the suit cannot recover. Adverse possession short of the statutory period of ten years, can neither operate as a bar to a recovery, nor as a basis of title -for a recovery, in ejectment. In computing the statutory period of ten years necessary to complete the bar, or give title upon which a recovery may be had, the period of time from January 11, 186Í, to September 21, 1865, must be excluded. This is the proposition contained in written charge 26, and in the giving of it there was no- error:. — 464 — ' Charges 28, 29, 32, 33 and 34 assert the same princi■ple, and that is, that the several deeds introduced in ■evidence, are not evidence that the several grantors had any interest or title in the land in dispute. While the deeds in themselves are evidence of a conveyance of whatever right, title or interest the grantors may have had in the land, they cannot as against the defendant, who is a stranger to the deed, be considered as showing that the grantor had any right, title or interest in the land. The giving of these charges at the request of the defendant was free from error. — Mahone v. Arends, 116 Ala. 19. There was evidence on the part of the plaintiff tending to show that the land in dispute was patented to one Ben Johnson in 1852, that said Johnson cleared up and cultivated a portion of the same in 1855 or 1856, and afterwards in 1862 built a house on the adjoining-forty acres known as the Cyclone Forty, and which was included in the patent issued for the forty acre tract in .dispute, and in said year 1862 lived in said house and cultivated land in both forties, and in the latter part of said year 1862, sold said land in dispute to the Oxford Iron Co., that the Oxford Iron Co. succeeded said Johnson in the possession of said land, and during the years 1863 and 186.4, cut timber and did coaling on said land, that said Oxford Iron Co. continued in the possession of said land up to 1874 or 1875 when it sold, the same to the Woodstock Iron Co.' On this phase of the evidence, bv tacking the possession of the Oxford Iron Co. on to that of its vendor Ben Johnson, after excluding in the computation of time the period from January 11, 1861, to September 21, 1865, the jury might have found that the Oxford Iron Co. had acquired a title by adverse possession for a period of ten years. Under this view of the evidence the giving of charge 35 was erroneous, as it was, we think, clearly an invasion of the province of the .jury. Actual possession of any part of the land under color of title extends to the limits and boundaries as defined in the color of title, with the exception that it may not -embrace such as may be adversely held by •another. So — 465 — .adverse possession under color of title which involves .the element of actual possession, since without actual possession there can be no adverse possession, the pos-, session is eo-extensive with the boundaries defined in the color of title, subject to the exception above stated. There was evidence tending to show adverse possession by the defendant under color of title for the statutory period necessary to constitute a bar, and charge 36 being referable to this phase of the evidence was free from ■error. It is a well settled proposition that a conveyance of land at the time adversely held is void as against such adverse holder, though valid and efficacious to convey title as between the parties to the conveyance. The proposition as stated in charge 38 is broad, and for that reason might have been refused, but in the giving of it-there was no reversible error, as any possible misleading tendency of the charge could have been met by an explanatory charge asked by the plaintiff. We think charges 41 and 42 are free from error. For the error pointed out, the judgment must be reversed and the cause remanded. Reversed and remanded.