Bowles v. Lowery

MCCLELLAN, J. Statutory ejectment, by appellee against appellant. The tract sued for contains 40 acres, described by government subcall of that area. The plaintiff’s assertion of right to. the land is rested solely upon adverse possession, through the right of her hus — 607 — hand (since deceased), without any color of title being shown. Indeed, she testified: “I never had any kind of deed to this land from my sons or from my husband, or from any one else. My husband (deceased) never had any deed that I knew of. I never bought it from any one.” The evidence referring to, or descriptive of, a letter received by plaintiff’s husband from one Robinson, who, plaintiff claims and testified, owned, the land about 1871, but who was not otherwise shown to have any title thereto, does not tend, in any degree, to show that the husband ever had any color of title to the land in question. Color of title is a writing which in appearance purports to transmit title, or the right of possession, but which in reality does not. — 2 Ency. L, & P., pp. 503-506; Clements v. Hays, 76 Ala. 280; Henry v. Breton, 143 Ala. 446, 39 South. 325. In such state of the right asserted, the lead to ai recovery is restricted to the area actually occupied by the adverse claimant, or those-through whom he claims. — Black v. Term. Co., 93 Ala. 109, 9 South. 537, among others. When the recovery is thus restricted (unaided by a bona fide claim under color of title, inheritance, or purchase), it is essential that the evidence afford data from which the actual possession of a definite, particular area may be ascertained. It cannot be left to speculation or conjecture. — McDaniel v. Tenn. Co., 153 Ala. 493, 45 South. 159; Chastang v. Chastang, 141 Ala. 451, 459, 37 South. 799, 109 Am. St. Rep. 45. The evidence here has been carefully examined with reference to this principle, and the conclusion it requires cannot be distinguished, in substance, from that prevailing, on a very similar state of fact, in McDaniel v. Tenn. Co., supra. There are indicia of actual possession of a part or parts of the 40, but there is an absence — 608 — of evidence from which the jury could have found the possessio pedis óf a definite, particular piece or area within that sued for. A very small part of the 40 was cleared. The other was wood land. The occupancy about the spring may have been of “3 acres” inclosed, but the evidence does not indicate, in any fashion, the particular form of this fractional (of the 40) area, or with certainty where it lay with reference to the other part of the 40. To undertake to lay the line of this “3 acres” by the evidence would be wholly vain. The cutting of firewood, etc., from the 40 is not shown to> have substantially covered, in the operations, the entire 40. When it is considered that the husband of plaintiff owned six other 40’s, some of which attinged this one in question on at least two sides, and that there was extreme uncertainty as to the knowledge of plaintiff and of her witnesses of the exact lines bounding the 40 in question, it is clear the evidence is insufficient to afford any basis for a particular finding of the definite área actually occupied (if so) by the plaintiff or by those through whom she would trace her right. On this account the defendant was entitled to the affirmative charge requested by him. If plaintiff’s husband had acquired title to the 40, or any definite part of it, by adverse possession previous to his demise, the plaintiff as his widow, would be entitled to maintain ejectment for such lands, provided they were so related to the place of his last residence as to make them the subject of the widow’s quarantine right. — Clancy v. Stephens, 92 Ala. 577, 9 South. 522, 524; Callahan v. Nelson, 128 Ala. 671, 29 South. 535; Hays v. Lemoine, 156 Ala. 465, 47 South. 97; 18 Cyc. 378. According to the undisputed evidence admitted on the trial, the 40 in question was entered, in 1858, by one Jett Traweek; that John Bowles, the father of the de — 609 — fendant, bought the 40 from Traweek in 1860; that Jett Traweek made a deed to John Bowles to said 40, which his widow (Frances O. Bowles) had seen; that this deed was acknowledged before Berry, a justice of the peace; that said deed, which was not recorded, was destroyed about 1880, when John Bowles’ home burned; that Berry died some years since; that Frances O. Bowles is the mother of the defendant, and that defendant and Mary J. Berry, J. M. Bowles, Martha C. Harkey, Jeremiah S. Bowles, and Malisa E. Woods were all the children born to Frances C. and John Bowles. It was further shown, without dispute, that John Bowles went into possession in 1860 of the 40 under this deed from Traweek. The defendant offered in evidence a deed to defendant, describing the 40 in controversy, purporting to have been executed November 20, 1893, by the widow of John Bowles (Frances C.) and the several children, brothers and sisters of defendant, above named. On the theory that this instrument was Avithout acknowledgment by any of its signors except Frances C., the plaintiff taking the objection, the “court allowed the introduction of said deed as evidence of color of title merely, and not as conveying the legal title.” The acknowledgment, Avhich appears to immediately follow the signature on the instrument, is in the following words: “The State of Alabama, Fayette County, I, Henry Brasher, a Justice of the Peace, hereby certify that Frances C. Bowles her heirs whose names is signed to the foregoing conveyance, and Avho is known to me acknowledged before me this day, that being informed of the contents of this conveyance they executed the same voluntarily on the day the same bears date. G-iven under my hand, this 20 day of November, 1893. Henry Brasher (J. P.).” — 610 — The names of those purporting to be grantors are not set out in the body of the instrument. The pronoun “me” is employed in the acknowledgment of the receipt of payment of the consideration, viz., fl, and the pronoun “I” is employed in the granting clause, as well as with respect to the warranty, etc., feature of the instrument. According to the accepted principles and authority of Madden v. Floyd, 69 Ala. 221; Dinkins v. Latham, 154 Ala. 100, 45 South. 60, and S. S. S. & I. Co. v. Lollar, 170 Ala. 239, 54 South. 279, among others, the identity of the persons purporting to grant and convey in this instance is clear and certain. They were and are those whose names appear at the appropriate place for the execution of such instruments. Now as to the acknowledgment. Literal compliance with the form provided for that purpose is not exacted. Substantial compliance is required. The intent in the construction of acknowledgments is to the liberal, not the rigid, though in so doing the courts will not disregard the substantial requirements of the statutes. And in construing an acknowledgment, it will be read in connection with the deed and the deed in connection with it. — Sharpe v. Orme, 61 Ala. 263; Davis v. Gerson, 153 Ala. 503, 45 South. 587; Leech v. Karthaus, 141 Ala. 509, 37 South. 696; Frederick v. Wilcox, 119 Ala. 355, 24 South. 582, 72 Am. St. Rep. 925; 1 Ency. L. & P. pp. 878, 881-886; 1 Cyc. pp. 581-584. If, without resort to mere inference or conjecture, what was intended to be expressed can be clearly seen, errors of a purely clerical or grammatical nature will not avoid the certificate. — 1 Ency. L. & P. pp. 885, 886, and notes; 1 Am. & Eng. Ency. Law, pp. 547 et seq.; 1 Cyc., pp. 582-584. Aside from the grammatical mistake evinced in this acknowledgment, by the use of “is” when “are” was — 611 — the verb the context required, it is evident that the point of objection taken to the certificate, and sustained by the ruling of the court, was that it did not show who, other than Frances C. Bowles, were acknowledgors of the instrument; that the others, who purported to be grantors, were not shown by the certificate to have made acknowledgments of their execution of the instrument. There can be no doubt that it is essential that such a certificate show who acknowledged the instrument of which the certificate is a part. The solution of the controlling question in this connection must be had by a construction, in this respect, of the certificate. The question, in one respect, is similar in principle to that elaborately considered and decided in Doe ex dem. Hughes v. Wilkinson, 25 Ala. 453. Under that authority evidence was admissible, and of course, in consequence, to be considered in the premises, to the effect that the persons, other than Frances C. Bowles, whose names appear as signors of the instrument of November 20, 1893, were all of the children, except J. L. Bowles, to whom it reads, born to John Bowles (then deceased) and Frances C. Bowles. In the light of this explanatory fact the words “her heirs,” appearing in the certificate of acknowledgement, describe the children of that union, and ‘her heirs” is to be referred, and refers, to those persons signing the instrument, who were children of John and Frances C. Bowles. — S. S. S. & I. Co. v. Lollar, 170 Ala. 239, 247, 54 South. 272. Such evidence, leading legitimately to that result, is in aid of interpretation, and does not impinge the rule against the admissibility of direct parol evidence to show intention. — 35 Ala., pp. 462-466. When the certificate is so interpreted it is evident that its only fault, in the pertinent particular, lies in the omission of the conjunctive “and” between “BoAvles” and “her.” Manifestly such an omission, — 612 — clearly clerical, should not he accorded the effect to destroy the certificate and defeat the conveyance to a major degree, notwithstanding a view and consideration, which must be taken, of the instrument proper, of its signors and of their relation to Frances C. Bowles and to John Bowles, and of the use of the plural names and the certification that “they” executed the same voluntarily. The reasoning of the New York Court; in Smith v. Boyd, 101 N. Y. 472, 5 N. E. 319, touching a matter involving a similar principle, may be read with profit in this connection. Threadgill v. Bickerstaff, 7 Tex. Civ. App. 406, 26 S. W. 739, pertains to acknowledgments of a materially different verbiage from that under consideration. Our conclusion, on this matter, is therefore that the conveyance of November 20, 1893, to J. L. Bowles was valid, and transmitted to the grantees such title as was then vested in the grantors in that conveyance. So on this transcript it must be ruled that defendant possessed title to the 40 in question, unless plaintiff’s husband had acquired, by adverse possession, title to the 40 or to a part thereof. Charges 2 and 7 were hence erroneously given upon plaintiff’s request. Since the plaintiff’s right to the possession (if so) is not sought to be predicated of the conditions set down in Code (1896), section 1541 (act approved February 11, 1893), [Laws 1892-93, p. 478], that statute applies to her claim of title by adverse possession; and, if adverse possession was not perfected before the act of 1893 became effective, and, if there was no written declaration filed as that act required, she was restricted to proof of a perfected adverse possession prior to the going into effect of the act of 1893. — Bowling v. M. & M. Ry. Co., 128 Ala. 550, 29 South. 584; Brasher v. — 613 — Shelby Iron Co., 144 Ala. 659, 40 South. 80. Charges 6 and 9 were in consequence erroneously given upon plaintiff’s request. Charge 1 was erroneously given at plaintiff’s instance. When referred to the evidence, as must he done, it was manifestly calculated to mislead the jury. It omitted to hypothesize that the possession was exclusive. The fact that actual possession was hypothesized did not so minimize the misleading character of the charge as to avoid affirmative error and put the defendant to an explanatory instruction. Actual possession, continuous and under claim of right or claim of ownership, for 25 or 30 years is still not adverse possession unless it is exclusive. The judgment is reversed, and the cause is remanded. Reversed and remanded. All the Justices concur, except Dowdell, C. J., not sitting.