Bowling v. Mobile & Montgomery Railway Co.

TYSON, J. This was an action in the nature of an action of ejectment brought against the defendants, appellants here, to recover the possession of certain land described in the complaint. The defendants filed a joint plea of not guilty and suggested upon the record that they had and have been in adverse possession of the land sued for, for three years next before the commencement of this suit. The appeal is prosecuted by them jointly, and the assignments of error are joint. It is a settled rule that assignments of error made jointly by the appellants are not available unless the ’error is injurious to all. Matters, which are prejudicial to one of the appellants only, will be disregarded. Kimbrell v. Rogers, 90 Ala. 339; Rudulph v. Brewer, 96 Ala. 189; Lillich v. Moore, 112 Ala. 532; Hillens v. Brinsfield, 113 Ala. 304. This controversy arose over a portion of a tract of land which the evidence, without dispute, showed was claimed by the plaintiff jointly with others,-under certain deeds purporting to convey it, and the remainder of the tract of which it was a part. -These deeds were executed in 1870 and 1871. It is also without dispute; that after the plaintiff received these deeds, it entered upon the land anti, -constructed its track along and over it, and that" it has been continuously in possession of that part upon which lies its road-bed ever since. That in 1885, the plaintiff entered into a partition of the tract with the persons claiming to -own the remaining interest and received a deed from them under which it claims the sole ownership of the portion here in controversy. After the plaintiff had constructed its road, one of the defendants, Mrs. Bowling, who was at that time the wife of one Childs, in March, 1873, claims to have, entered upon and to have taken possession of the part involved in this suit and to have remained continuously and uninterruptedly in the possession of it, claiming it as her own. Her then husband, it appears, was in the employ of the plaintiff as watchman and so continued until 1882. During this period of time he resided on the premises with his wife, and so resided there with [555] her until his death in 1884. It is not contended, however, that he claimed to own this land or to have been adversely holding it. On the contrary, the. insistence of the defendants, and their testimony tended to support it, was, that he did not claim to own it. After his death Mrs. Bowling, then Mrs. Childs, continued to reside on the. land alone with - her children until her marriage with Bowling, her co-defendant, on the 31st of January, 1888. Since the marriage the two defendants have been living on the land. The testimony of the defendants tended to show that Mrs. Bowling, prior to her last marriage, claimed to own the land, and that since her marriage with Bowling, they have claimed to own it. The (testimony of the plaintiff tended to show that neither of the defendants ever claimed the land as their own, but that they recognized the plaintiff as its owner. The title claimed by defendants is by adverse possession without any color of title. As against the plaintiff, they were trespassers, and in order to establish their title by adverse possession, they must show possessio peclis under claim of ownership for -ten years prior to the eleventh day of February, 1893, in the absence of notice in the form of a written declaration filed in the office of the judge off probate of the county in which the land lies as provided by the act of February 11th, 1893. — Acts, 1892-3, p. 478. The record'contains no evidence of a compliance with the provisions of this act. As the burden of proof was upon the defendants to establish their title by adverse possession, it must be presumed that they did not comply with them. The defendants, being trespassers, the plaintiff could recover upon proof of its prior actual possession. And this was sufficiently shown by the evidence of the actual possession of a part of the tract under color of title describing the. whole. — Branch v. Smith, 114 Ala. 464; Mickel v. Montgomery, 111 Ala. 420; Payne v. Grateford, 102 Ala. 399; Gist v. Beaumont, 104 Ala. 350; Beard v. Ryan, 78 Ala. 37. And in connection with proof of actual possession of a portion of the tract, the plaintiff may introduce in evidence a void deed to [556] show its claim, under color of title and the extent of its possession as defined by the boundaries described in it. — Gist v. Beaumont, supra; Beard v. Ryan, supra. When the plaintiff made proof of actual possession of a part of the tract and introduced in evidence the deeds to it purponting to convey to it an interest in the entire tract of which the land in controversy was a part, it made out a prima facie case and the burden of proof was shifted upon tin* defendants to establish their title by adverse possession. Tin* proof is undisputed that tin* defendant E. 1). Bowling had been upon the land only five years, and twelve days prior to February, 1893, and as against him the. plaintiff was entitled to have the court charge* affirmatively that it was entitled to recover. It is needless to say that lie cannot tack his possession to that of his wife antedating her marriage with him. — Robinson v. Allison, 124 Ala. 325. These facts being undisputed, the oilier rulings of the court in the exclusion of evidence, which, if admitted, would not in the remotest degree have tended to produce a conflict or an adverse inference to a. contrary conclusion, resulted in no possible injury to him. Nor were his rights prejudiced by the giving of the written 'charge's requested by the plaintiff or the refusal of the written charges requested by the defendants. — Bienville Water Supply Co. v. City of Mobile, 125 Ala. 178; Seymour v. Farquhar, 93 Ala. 292. There is no merit in the contention that the judgment is void on account of the complaint failing to show that ¡the lands sued for are in Mobile county, State of Alabama. The 'court judicially knows that the Mobile river is formed by the juncture of the Alabama and Tombigbee rivers south of the north line of Mobile county, and that the entire county lies west of the river. The criticism is, therefore, without foundation in fact. There being no error of which E. I). Bowling can complain, the defendant, Mrs. Bowling, can take nothing under the assignments of error. The judgment must be affirmed.