Witherington v. White

SIMPSON, J. — This is a statutory action of ejectment by the appellees against the appellant. The plain [318] tiffs, besides proof seeking to establish adverse possession, introduced a deed from Green Knight to Katy Knight (his wife), July 26, 1876, a deed from Charles Gainer (who testified that he is the only heir of Katy Knight) to S. A. Wilson, January 21, 1907, and a deed from S. A. Wilson to plaintiffs, January 22, 1907. The defendant introduced a deed from Miles Riley, Amanda Ingram, and Celie Riley, of date April 7,1905, and from Enoch Knight and Comelete Knight, of April 8, 1905, conveying the land to defendant, with proof tending to show that the grantors were brother, half-brother, and sister of Green Knight. ' • There was no error in admitting the tract book to show that the land had passed out of the United States government. This was immaterial, at any rate, as both parties claimed through Green Knight, and it was not necessary to trace the title beyond him. The deed from Green Knight to Katy Knight was signed by mark, and the acknowledgment was insufficient; ’but the testimony as to the handwriting of the witnesses to the deed was sufficient to admit the same. The credibility of the witness, as to his knowledge of the handwriting, on account of his age, was a matter for the consideration of the jury. The court erred in excluding the testimony in regard to the mental condition of Green Knight at the time of the executed of the deed to Katy Knight. The deed was offered, without qualification, as a muniment of title, and not merely as color of title. Hence the mental condition of the grantor was important. Doubtless the idea of the judge was that the adverse possession of Katy Knight and Charles Gainer was conclusively proved, and for that reason the mental condition of the grantor was immaterial, as he subsequently gave the general charge in favor of the plaintiffs; but we cannot say that [319] the proof was so clear and free from conflict as to justify the general charge. It is true that Gainer testified that he and his mother were in continuous possession, yet his subsequent testimony somewhat qualifies this statement, so that it cannot he said certainly whether he and his mother were in joint possession, whether she was in possession part of the time and he part of the time, or whether the possession of this particular tract, which was timber land, was open, notorious, and continuous. Besides, it is not clear that she was holding under the deed, rather than occupying her quarantine rights. All these matters were for the jury to consider.' —Code 1907, § 382; Foy v. Wellborn, 112 Ala. 160-164, 20 South. 604; Robinson v. Allison, 124 Ala. 328, 27 South. 461. We do not attach any importance to the proof offered that the defendant was in the actual possession of the land at the time of the execution of the deed to plaintiffs, as section 3839 of the Code of 1907. does not attempt to divest any title, but merely to affect the remedy, so that one who receives a deed while another is in adverse possession may bring suit in his own name, in place of in the name of his grantor. The court erred in giving the general charge in favor of the plaintiffs. The judgment of the court is reversed, and the cause remanded. Reversed and remanded. Dowdell, C. J., and MoC'lellan and Mayfield, JJ., concur.