Powers v. Hatter

ANDERSON, J. In an action of trespass quare clausum fregit, the plaintiff, in order to recover, must show actual possession, or if there is no actual possession — no possessio pedis — then he can recover by proving title to the land, which gives constructive possession. —Shipman v. Baxter, 21 Ala. 456; Garrett v. Sewell, 108 Ala. 521, 18 South. 737. The plaintiffs failed to prove actual possession of the land prior to and at the time of the alleged trespass. The mere act of riding along the road which ran through the land on several occasions and paying tax on same a few times did not amount to actual possession. Failing to prove actual possession, they were put to proof of title in order to establish a constructive possession. Therefore, if the defendants showed actual possession, it would defeat plaintiffs’ right to recover under the trespass count; for if defendants had the actual possession, there could be no possession on the part of plaintiffs, actual or constructive, even if they had the title. It was not necessary, however, for the plaintiffs to have the possession in order to recover under the trover count, as they were entitled to recover in trover upon [641] the strength of their title, and, the title to the land having been admitted in their ancestor, the defendants conld only defeat a recovery under said count by showing that the title had been divested. It was admitted that Margina Hall, the mother of the plaintiffs, had the title to the land, and plaintiffs traced title from the other heirs to themselves, save the Gilberts; but the failure as to the Gilbert interest merely cut down the amount of their recovery, but did not cut off the right to do so. The acknowledgement to the Gilbert deed was not good, as it set out an entirely different person from the one signing the same and was not, therefore, self-proving under the enabling act as to recording conveyances. It may be that the presumption would be that the grantors and the subscribing witnesses were all in Colorado, and that the best obtainable secondary evidence was admissible to prove the execution of the deed; but such evidence was not introduced. While the witness testified that she knew the handwriting of her brother, she never proved that the signature was in his handwriting, but testified that she sent it to him in Colorado, and he signed it and returned to her. She did not see him sign it, and could not, therefore, testify that he signed it, and the trial court did not err in sustaining the defendants’ objection to her evidence. The defendants’ counsel stated in open court that “they relied on their title to the land and would defend solely on their title to the land involved in the suit.” The undisputed evidence shows that the defendant was in the actual possession of the house and a small parcel of land surrounding the same, through one Miles, for over 10 years; but this would not extend his possession to the entire tract, unless he had color of title thereto. Nor would his actual possession of the house and sur [642] rounding cleared lancT be available to him, unless be held the same under color of title or some bona fide claim, as there was no proof of a recorded declaration as required by section 1541 of the Code of 1896. Therefore, while the defendants’ evidence showed an actual possession of the entire tract by constantly cutting and hauling wood and timber, camping on and going over the land, and paying taxes on same, it was disputed by some of the plaintiffs’ evidence, and it was a question for a jury as to the plaintiffs’ actual possession of the land other than the house, and upon which the proof shows the timber was cut. The defendant also attempt- ; d to show a. paper title to the land by proving deeds from plaintiffs’ mother to Davis and from Davis to himself. While the English cases lay'down the rule very broadly that there are no degrees in secondary evidence, the current of American authorities goes very strongly to show that, although the facts may warrant the admission of secondary evidence, the best kind of that character of evidence, which appears to be in the power- of the party to produce must be offered. — Harvey v. Thorpe, 28 Ala. 250, 65 Am. Dec. 844. In the case at bar the defendant testified as to the burning of certain deeds, and had to describe them in order to lay a predicate by showing what papers were destroyed, and the trial court did not err in overruling the objection to the testimony of the defendants as to whose signature was affixed to the paper. Subsequently the witness testified that the deed was acknowledged before James Flanegan, and then testified as to the contents of the deed. It might be that there was better evidence of the contents and execution of the deed but there seems to be no objection and exception, except when the predicate was being established; hence we cannot put the trial court in [643] error in permitting proof of the contents of tlie Hall deed. As to tlie Davis deed, the defendants’ testimony was competent to prove the burning and identity of said deed as being among those destroyed, and the contents was proved by one of the subscribing witnesses, Sarah Lister. Notwithstanding the court did not err in permitting proof of these deeds, we think it clearly erred in giving the general charge for the defendants. There were many facts and circumstances to create inferences that the deeds were never made, and whether they were or not, was a question for the jury. While the defendant testified as to the burning of certain deeds, he admitted that he had others from Davis, and one from Hall to Davis, which had escaped the flames. So, too, had the ones that escaped been recorded before the destruction of the others, which had not been recorded. Why did some escape and others burn? Why were some recorded and others not? The defendant attempted to explain, but it was for the jury to determine the truth of the matter. The defendant testified that Davis gave him several deeds to separate and distinct parcels of land, executed on the same day, and that one which did not involve this land escaped the flames, while the one conveying this land was burned. Why did Hall execute separate and distinct deeds to the same grantees on the same day to lands in the same locality, when one deed could have conveyed it all? And how was it- that the deed to this land was burned, and a deed given him at the same time-escaped? The defendant attempted an explanation; but his explanation did not do away with the inferences which should have been considered by the jury. Again, the subscribing witness, Lister, testified that she attested several deeds on the same day from Davis to the defendants, but did not deny on cross-examination that [644] she formerly testified that sbe attested but one. Moreover, there was proof that Davis renounced any claim to this tract of land between the time he was supposed to have the title, to wit, between the date of the execution of the Hall deed to him and the one from him to the defendants. The trial court did n-ot err in sustaining the objection to Lula Powers being asked to give the contents of letters written by her to the defendant. True, they were not in her custody; but she made no effort to have them produced, and secondary evidence was not, therefore, admissible to prove the contents. If there was any error in excluding the evidence of T. D. Power and George Hafctenstein as to the number of trees cut, it was error without injury, as they testified to the cutting of only 250 trees, and the defendants admitted in open court to the cutting of that number. The trial court committed no error in permitting the receipt from Hall to Davis and testimony of Davis claiming the land. The execution of a deed from Hall to Davis was disputed, and plaintiff introduced evidence that Davis did not claim the land about the time defendant claims it was deeded to him. The receipt, if it referred to the land in question, which was a question for the jury, was corroborative of the defendants’ testimony that Davis bought it from Hall, as was the testimony that Davis was claiming the land,' and which was contradictory to plaintiffs’ evidence that Davis set up no claim to the land. The judgment of the circuit court is reversed, and the cause is remanded. Tyson, O. J., and Simpson and Denson, JJ., concur.