Swift v. Doe ex dem. Williams

McCLELLAN, J. Common-law ejectment. There were six demises laid, viz., from John G. Williams, Thomas F. Stickney, Claudia Watkins, Hattie E. Banks, T. E. Green, and Carrie McNulty. The court, at the request of the plaintiff, gave the general affirmative charge, and accordingly the verdict and judgment was for the whole estate in the land claimed in the complaint. We have been unable to. discover in the bill of exceptions any recital that it contains all, or even substantially, all, of the evidence introduced on the trial: The deed from Grist to Thomas F. Ctickney was a warranty deed, and, upon subsequent acquirement of title to the land in dispute by the grantor, that title insured to the benefit of the grantee, Stickney. — Croft v. Thornton, 125 Ala. 391, 28 South. 84; Wagnon v. Fairbanks, 105 Ala. 528, 17 South. 20; 6 Fed. St. Ann. pp. 514, 515, Rev. St. § 2448 (U. S. Comp St. 1901, p. 1512.) Under this conveyance Stickney became entitled to an undivided half interest in the lands described in the deed. The description of the lands in the deed was sufficiently definite to permit its further identification by other evidence, parol or in writing. Since the bill of exceptions does not purport to set forth all, or substantially all, of the evidence before the trial court, we must presume that the' description in the deed from Grist to Stickney was properly aided- by serviceable evidence to that end. It hence results that unless a jury issue was made by evidence of adverse possession, or that issue was pre [150] vented by erroneous rulings of the court in excluding defendant’s evidence to that purpose, an affirmance must be entered. No such errors, to the prejudice of defendant, intervened, because the legal title to this land was in the government, at least until the issuance of the certificate (see Case v. Edgworth, 87 Ala. 203, 5 South. 783; Ledbetter v. Borland, 128 Ala. 418, 29 South. 579); and hence there could have been no adverse holding thereof (Stringfellow v. Tenn. Co., 117 Ala. 250, 22 South. 997, and authorities therein cited). The certificate of final receipt and the patent were issued within 10 years before this action was instituted. There was, therefore, no possibility of an adverse possession affecting the rights of the parties; and the exclusion of testimony attempting to show adverse possession was harmless to defendant. It follows that the plaintiff was entitled to a verdict as upon the demise laid in Stickney. However, the right of recovery on that demise was necessarily limited to an undivided interest, the interest vested in Stickney by the deed of John W. Grist to him. On this status appellant insists that the general affirmative charge to find for the plaintiff (the extent of the finding was not stated in the charge) was error. We have recently ruled on this question in Cochran v. Kimbrough, 157 Ala. 454, 47 South. 709. It was there held that, while the court might well have refused such an instruction, it was not reversible error, since the plaintiff was in fact entitled to a verdict, though not to recover the entire subject-matter claimed in the complaint. The holding in the cited decision has been re-examined, and no good reason appears to require a departure from it. Accordingly the judgment must be affirmed. Affirmed. Simpson, Mayfield, and Sayre, JJ., concur.