Owen v. Moxon

ANDERSON, J. The general rule is that in an action of ejectment the plaintiff may recover upon prior possession as against a defendant who has a mere subsequent possession, and such defendant cannot defeat the plaintiff’s recovery by showing that there is or may be an outstanding title in another. — 10 Am. & Eng. Ency. of Law, 487; Green v. Jordan, 83 Ala. 220, 3 South. 513, 3 Am. St. Rep. 711; Roe v. Doe, 159 Ala. 614, 48 South. 49; Dodge v. Irvington Land Co., 158 Ala. 91, 48 South. 383, 22 L. R. A. (N. S.) 1100. This rule does not prevail, however, against a. defendant who acquires the possession peaceably and in good faith under color of title; for, if such is the case, the defendant can defeat the plaintiff’s right to recover upon a previous possession, by showing an outstanding title in another and without connecting himself therewith. — McCreary v. Jackson Lumber Co., 148 Ala. 247, 41 South. 822. In the case at bar the plaintiff proved a prior possession, but the defendant proved a possession under a purchase and color of title, and also proved an outstanding title in Henderson, the patentee; and the plaintiff was then put to proof of title by establishing one superior to Henderson’s, and which was attempted by showing adverse possession by himself and those under whom be holds for a sufficient length of time for it to ripen into title, and which question was properly submitted to the jury, as there were many possessory acts shown by Armstrong and those holding under him. Indeed, almost every possessory act to which the character of the land was susceptible was proven. — 622 — • Neither Avas the defendant entitled to the general charge, upon the theory that there Avas no declaration or claim filed, in the probate office, of an adverse claim, or because Armstrong Avas holding for the Johnston Company and there had been no sufficient repudiation of their title by him. The statute (section 2830, Code 1907) registration applies only to one in possession as a trespasser or mere squatter, and not to one avIio claims under a bona fide claim of purchase. — Roe v. Doe, 159 Ala. 614, 48 South. 1033; Holt v. Adams, 121 Ala. 664, 25 South. 716; Sledge v. Singley, 139 Ala. 346, 37 South. 98. There Avas evidence from Avhich the jury could infer that Armstrong Avas in possession under a bona fide claim of purchase, and the trial court did not err in assuming, as matter of laAV, that Armstrong could not hold adversely after the act of 1893 (Acts 1892-93, p. 478), unless he had filed a Avritten declaration in the probate office. It is true that the proof tended to show that Johnston Company, and not Armstrong, had purchased or entered the land; but it also showed that Armstrong owned an interest in same, and that he was holding under the claim of said Johnston Company. Whether Armstrong held adversely to Johnston Company or not, or his possession could not be tacked onto those holding under him, as to all of the land, did not entitle the defendant to the general charge, as there Avas proof that Armstrong claimed an interest in the land and the plaintiff was entitled to his undivided interest,' and the general charge, or those questioning Armstrong’s right to claim adversely to the Johnston Company, did not except the interest of Armstrong in the land, whether he was holding the other interests for Johnston Company or not. It is true that declarations made by claimants to land as to the source of title, whether in possession or not, — 623 — are not admissible in evidence as against another.— Doe v. Clayton, 81 Ala. 391, 2 South. 24; Daffron v. Crump, 69 Ala. 77. But a party in possession of land may make declarations explanatory of his posession, and either claim or disclaim ownership of the property, and such declarations may be given in evidence, in an issue of disputed ownership, no matter who may be parties to the suit. Possession being the principal fact, such declarations are admissible as part of the res gestae of the possession itelf, and are admissible when made by a party while on the land, or in possession thereof, whether actually on the land or not at the time of making same. — Payne v. Crawford, 102 Ala. 398, 14 South. 854, and authorities there cited. There was proof tending to show that Armstrong was in the possession of the land when he wrote the letter to Wallace, which was a mere claim of ownership of the land, and did not relate to the source of his title, and the trial court did not err in admitting the letter in evidence. There was no error in refusing to exclude the conversation between Wallace and Armstrong, as there was evidence that Armstrong was in possession of the land, and was actually on it when the conversation was had. It is true that some of the declarations of Armstrong related to the source of his claim or title; but some of them showed that he was claiming to be the owner of the land, and the motion to exclude did not separate the good from the bad. Nor was the question'asked calling for the conversation subject to the objection made to same. The fact that the deed from Wallace to Moxon may have antedated the one from Armstrong to Wallace was not fatal to the.use of the deeds as color of title; nor did it deprive this plaintiff of tacking the possession of Armstrong to Wallace, and that of Wallace to his own. — 624 — The proof shows that Wallace had been let into possession under Armstrong. It is not competent to show, by reputation of general understanding in the neighborhood, that a plaintiff in an action of ejectment owned or had title to the land.-Goodson v. Brothers, 111 Ala. 589, 20 South. 443. But, while the existence of a fact cannot be proved by notoriety or reputation, yet, where the fact is otherwise established, its notoriety, for the purpose of showing notice, and which said notoriety is an element of adverse possession, may be shown. — Tenn. Co. v. Linn, 123 Ala. 138, 26 South. 245, 82 Am. St. Rep. 108; Woods v. Montevallo Co., 84 Ala. 564, 3 South. 475, 5 Am. St. Rep. 393; Humes v. O’Bryan, 74 Ala. 81. There was evidence, independent of the fact that the land was known as the Armstrong land, showing that Armstrong Avas in possession, and the fact that the land was so known was a circumstance to show that his possession was notorious. If it tended to show ownership, or facts other than notoriety of the possession, the appellant should have requested a limitation to this effect, but cannot put the trial court in error for letting it in, as 31 was. relevant for certain purposes, and the objection attempted to keep it out entirely. There was no error in permitting the witness Phillips to testify that Armstrong was trying to sell his father the land three years after the surrender. There was evidence that he was in possession, and this was part of the res gestae, and it was a question for the jury as to Avhether or not it applied to this particular parcel of land, as it was in section 30, north of his old home. The motion to exclude the evidence of Henry W. Armstrong that his father said that he felt he had a right to sell the land was not subject to the grounds of the motion. Whether properly expressed or not, it was — 625 — a circumstance tending to show that he was asserting ownership thereto, and was competent, relevant, and material. The trial court did not err in limiting the deeds offered by the defendant to color of title, instead of muniment of title. The title claimed under the deed was derived under and by virtue of a tax sale, and which must have complied with the statute in order to vest the purchaser at the sale with a title. It was sufficient to say that what purports to be the assessment on agreed page 42 of the record, fails to show that the land in question formed part of the assessment. The trial court will not be put in error for so much of the oral charge as was excepted to by the appellant. This charge did not submit a question of law to the ■jury. It simply left it to them to determine whether or not the facts in the case established the plaintiff’s title by adverse possession. It did not leave it to the jury to determine the legal definition or meaning of adverse possession, but to determine whether the facts as given in evidence constituted^ adverse possession, doubtless under the rule of what was adverse possession, as probably laid down by the court. We must assume that the court insructed the jury as to the constituents of adverse possession, and that so much of the charge as was excepted to was merely to call upon the jury to determine whether or not the evidence constituted adverse possession under the rule of law as laid down by the court. This presumption as to the oral charge is not overcome by the recital in the bill of exceptions that “there was no other part of the oral charge which changed the foregoing statement of the law.” The oral charge did not attempt to define adverse possession, or to instruct the jury to do so, but merely instructed them to determine whether or not adverse possession existed under the — 626 — facts in the case — not what constituted, in law, adverse possession, but whether or not it existed under the facts. There was no error in giving charge 1 at the request of the plaintiff. It hypothesized adverse possession in the concrete, did not attempt to define or set out the ingredients, and whether the court would or would not have been justified in refusing it, for failing to set out the constitutents of adverse possession, we need not decide; hut it is sufficient to say there was no error in giving same. There was no error in giving charge 2 at the request of the plaintiff. Whether the plaintiff should or should not have filed a declaration, under the act of 1893, as to an adverse claim, was a question of fact for the jury. If Armstrong held under a bona fide purchase, he did not have to file the declaration. On the other hand, if he did not hold under a bona fide claim of purchase, his holding after the act of 1893 could not constitute an adverse possession after that period. The result is- the charge is in the abstract correct, and hypothesizes a recovery upon an adverse possession for 10 years. If the holding was not adverse after the act of 1893, the charge in no way impinged the rule resulting from a failure to file the claim in case Armstrong was not claiming under a bona fide claim of purchase. Charge 3, given at plaintiff’s request, did not instruct that the facts hypothesized amounted to adverse possession, but that they may do so; and we think they might, whether the party was in possession under a paper title, or color of title, or not. The charge hypothesizes many more possessory acts than those intimated to he insufficient in the case of Alexamnder v. Savage, 90 Ala. 383, 8 South. 93. We do not commend this charge, but do not think it was reversible error to give same. — 627 — The trial court did. uot err in refusing charge 5, requested by the defendant. It was calculated to mislead the jury to the conclusion that the plaintiff could not recover unless the possession of Armstrong was coupled with a bona fide claim of purchase for a period of 10 years prior to the statute of 1893. The judgment of the circuit court is affirmed. Affirmed. Dowdell, C. J., and McClellan and Sayre, JJ., concur.