McCreary v. Jackson Lumber Co.

ANDERSON, J. — When this case was here before, the court reiterated the doctrine, so often laid down by the courts of the land, “that a plaintiff in ejectment must recover upon the strength of his own title and must- show a valid title in himself, whether the defendant’s title be valid or not; and, the defendant being in [250] possession, tlie plaintiff cannot recover against Mm without showing a, better muniment of title to the land than his or that he has acquired title by adverse possession.”—Jackson Lumber Co. v. McCreary, 137 Ala. 278, 34 South. 850. Upon the former appeal this court held that the defendant was entitled to the general affirmative charge because the plaintiff had shown no legal title, and that the evidence also failed to show sufficiently clearly the possession of any one under whom they claimed to hold. There was no evidence as to the possession of Donaldson. One Morrow does testify that “A. F. Jackson owned and was in possession of said N. E. 1-4 of section 36, township 1, range 18, from the time he bought it from W. F. Donaldson until he sold it to John Finley about the year 1882,” a period of eight years. It is true 'that the witness, in detailing the possessory acts of Jackson, did not enumerate sufficient acts to show actual possession; but he nowhere stated that these were the only possessory acts, and, having previously testified to the collective fact that Jackson was in possession, it became a question for the determination of the jury as-to whether Jackson was in the actual possession of thé land when he conveyed it to Findley, the ancestor of the plaintiffs. If he was, the plaintiffs made out a prima facie case. The defendant claims under Mc-Guirks, and Mrs. McGuirk testified that “they lived upon the land and were in actual possession from 1861 to the fall of 1865; that she then left and never returned to the land until 1890 (25 years afterwards), when she resided on it for 2 years, and then sold it to the defendant.” The McGuirlcs went into the possession of said . property in 1861 under a deed, and it is undisputed that they had an older actual possession. It is settled law that, “when neither party has the true title, the older possession gives the better right, and such right is not defeated by a subsequent entry and occupation by the opposing claimant until it ripens into a title by adverse possession.” — 3 Mayfield’s Dig. p. 122, § 94, and cases there cited. The rule is also settled that one claiming by prior possession under color of title cannot recover where the evidence fails to show continuous pos [251] session by tbe defendant, or an animus lever tan di.—Newell on Ejectment, 364; Smoot v. Locatt, 1 Stew. 590; Sabariego v. Maverick, 124 U. S. 261, 8 Sup. Ct. 461, 31 L. Ed. 430. Mrs. McGuirk having abandoned the land for 25 years, there was evidently no animus re-vertandi; and her deed from the Seglers was not recorded until the year 189 0, so there was nothing to put Jackson on notice that she had an adverse claim of possession when he bought the land from Donaldson in 1874, or when it-was sold to Findley in 1882. Therefore if the plaintiffs acquired a prior possession through their giantors, they would be entitled to recover as against a mere trespasser on the land or one claiming only under a later possession. “And according to the prevailing rule the plaintiff’s right to recovery in such case cannot be resisted by showing that there is or may be an outstanding title in another.”—10 Am. & Eng. Ency. Law, 487; Green v. Jordan, 83 Ala. 220, 3 South. 317, 3 Am. St. Rep. 711; Heyin v Birmingham, 56 Ala. 566, 28 Am. Rep. 776. The foregoing rule does not prevail where the defendant has acquired the possession peaceably and in good faith under color of title.—10 Am. & Eng. Ency. Law, 488, and cases there cited; Doc ex dem. v. Edmondson, 145 Ala. 557, 40 South. 505; Wilson v. Glenn, 68 Ala. 383. In the case at bar the defendant proved color of title and a, bona fide purchaser from those who were in possession of the land, and which would enable it to defeat the plaintiffs’ recovery by showing an outstanding title without connecting itself with the same. But the defendant was relieved of that in this case by the plaintiffs, who showed the title to be in Thomas Leonard, the patentee, and with whom the plaintiffs were in no wise connected. These facts having been shown, the plaintiffs were then put to establishing a title by adverse possession in order to recover. In order for a party to establish a title to land by adverse possession, it must be shown that for a period of 10 years-he and those under whom he claims held a hostile possession under claim of r ight; that it was actual, exclusive, open, notorious, and continuous.—Chastang v. Chastang, 141 Ala. 451, 37 South. 799; Lawrence v. Ala. Land [252] Co., 144 Ala. 524, 41 South. 612. Conceding that the possession of Jackson ivas one for the jury, it covered a period of only eight years and which was insufficient in point of time to establish adverse possession. The evidence shows that after Findley bought the land he had parties to look after it and go over it several times, and that he paid the taxes up to the time of his death and his sons did so after his death. These acts were sufficient to make the question of adverse possession one for tlie juiy, and if the plaintiffs and those under whom they held had been in the adverse possession for ten years before the commencement of the suit and before defendant’s possession commenced, they were entitled to recover. The trial court erred in giving the affirmative charge for the defendant. We find hut one assignment of error to the exclusion of evidence upon the motion of the defendant, and which 3‘efers to “-page of the record,” and as we find that the court sustained two separate and distinct motions to exclude certain evidence, we are a loss to know as to which ruling the assignment relates, and as there was no error in one of them, even if in the other, which we do not decide, the assignment could not avail the plaintiffs. It was proper to exclude the evidence of the witness: “I was in possession of the title.” If there was any error in the question and answer of the witness Mary McGuirk with reference to the deed, it was error without injury, as she identified the paper which was in fact put in evidence and was there to show for itself, and eliminated any conclusion or opinion of the witness as to what kind, of an instrument it was, .as it was before the court and was in fact a deed. Nor was the objection as to the execution of the deed good, as the signatures of the grantors seem to have been written by them, and, while attested by one witness who signed by mark, it was also attested by another witness who wrote his own name. If the grantor of a deed writes his own name, it is sufficient if it be attested by one witness. This is the law noiv, and was lidien this deed was executed in 1863.— Section 1266 of the code of 1852, which is included in section 982 of the code of 1896. [253] Tbe judgment of tlie circuit court is reversed, and the cause is remanded. Revei sed and remanded. Weaiclby, C.. J., and -Haralson, Tyson, Simpson, and Denson, JR, concur.