Jackson Lumber Co. v. McCreary

HARALSON, J. The plaintiffs claim title to the land in question as derived from W. F. Donaldson, hut failed to show title in him. Donaldson testified, that he bought it once from his uncle, a man named Donaldson, who was in possession. He testified on his direct examination that in 1874, witness made a deed to the land to A. F. Jackson. Jackson, as shown, made a deed on the 26Ih December, 1882, to John Finley, the ancestor of plaintiffs, and through whom they claim. On the cross-examination of this witness he testified,, that he did not know who was in possession of the land from 1863 to 1872, when he bought in the latter year; that the land was wild land at that time; that the person he bought from, (his uncle), went over the land and showed it- to him; that when he sold it to Jackson in 1874, he took him over it and showed it to him; that lie', did not know that Jackson was ever on the land after 1874; that Jackson went away to Crenshaw county, and has never returned, that witness knew of, and that all the possession the witness ever had of the land was to buy and sell it. (t. W. Kierce, a witness for plaintiffs testified, that he had known the land for 17 years, and it was’wild land now; that there had been a house and a patch on it at one time, but that these had gone down and there was nothing ’remaining of these improvements except a little old field; that he knew John Finley in his life time, Avho claimed the land and asked witness to look after it and keep off trespassers; that witness went on, it two or three times to look after it for Finley; that if Finley was ever actually on the land, witness did not knoAV of it, and the only act of his possession Avas to get Avitness to look after it and keep off trespassers. John Finley, -a son of the ancestor of plaintiffs, testified, that his father paid taxes on the land until he [281] died in 1888, and lie could not say who was in possession from 18G8 to 1888, or before that time. Mary McGuirk for the defendant testified, that she lived on the land in suit in 1863; that H. H. B. Mc-Guirk, her husband, lived with her on the place till the latter part of the Avar AA'hen he Avent into the service and died; that S. K. and O. B. Segler, whom she kneAv, executed a deed to her said husband to said land, on the Gth of September, 1863, and the same lias been in her possession ever since, until she turned it over to the defendant company, about 1892, and that she was in possession from 1863, until the latter date. This deed was introduced in evidence, as was also a deed to the land from the ividoiv and heirs of said H. B. Mc-Guirk, deceased, to David McGuirk, dated the 7th December, 1891; and a deed from David McGuirk to the defendant company, of 3d October, 1892. The defendant also introduced several Avitnesses who-testified to substantially the same facts as Avere deposed to by Mary McGuirk; that the lands had been in the possession of the McGuirlcs since 1863, claiming them as their own, until they were sold to defendant in 1892; that they never knew or heard of Donaldson, Jackson or Finley claiming the lands, until about the time this suit Avas brought. There Avas evidence, tending to sIioav that these lands Avere divided among the McGuirk heirs by the probate court after the death of H. B. McGuirk, — the division occurring in 1889, or 1890. A. plaintiff in ejectment must recover on the strength of his oavii title, and must show a- valid title in himself, whether the defendant’s title be valid or not; and the defendant being in possession, the plaintiff can not recover against him Avitliout shoAving a better muniment of title to the land than his, or that he has acquired title by adverse possession. — Stephens v. Moore, 116 Ala. 397; Bernheim v. Horton, 103 Ala. 384. Furthermore, a plaintiff in ejectment, in order to make out his right to recover, must show a regular chain of title back to some grantor in possession, or to the government. — Florence B. & I. Asso. v. Schall, 107 Ala. 531; The Bank v. Jones, 59 Ala. 126. [282] The plaintiffs here have shown no legal title to the land by proper legal conveyances from him in whom the title originally vested. Their evidence to show title is uncertain in character and wanting in sufficiency, to show possession of these,lands prior to defendant’s claim of title under conveyances from any one from whom they purchased and under whom they claim to hold. They show that Donaldson and Jackson, each, went on the land at the time it is alleged they purchased it, but it does not appear that either Donaldson, after his alleged' sale] to Jackson, or the latter, after his purchase, ever saw or went on the lands; and it is not shown, that plaintiffs’ ancestor, John Finley, ever saw or was in possession of the lands. It is shown merely, that he requested one Kierce to look after it for him and keep intruders off, which he did by going on the land two or three times afterwards. Such acts, without more, dO‘ not constitute possession. — Reddick v. Long, 124 Ala. 261. Moreover, it does not appear that Donaldson ever received a duly executed deed from any One to the land. That neither Donaldson nor Jackson has no such possession as can be deemed to be adverse, is certain. Such possession, as is claimed for them, was not visible, so far as shown bo any one, except to themselves, was-not actual, notorious and uninterrupted. On the other hand, it appears without conflict in evidence, that H. B. McG-uirk, whoi held a deed to the land from a prior occupant and claimant, lived on and claimed it from 1863 to the time of his death, and that his wife and children resided on it afterwards, and claimed it continuously until the-time they sold it to the defendomt, about 1892. The plaintiffs have not shown title therefor, neither by written muniments of title, nor by adverse possession; but it does appear, that defendant'and those under whom it claims have held it adversely, by such acts of ownership as the land was susceptible of, without interruption or intrusion of plaintiffs, and continuously for a period sufficient to give them a title by adverse possession. — Farley v. Smith, 39 Ala. 38, 44; Bernstein [283] v. Horton, 103 Ala. 384; Stephens v. Moore, supra; Burks v. Mitchell, 78 Ala. 61. . We need not- consider other rulings assigned as error, since, under the evidence, the defendant was entitled to the general charge as requested. Reversed and remanded.