Big Sandy I. & S. Co. v. Williams

MAYFIELD, J. — This is a common-law action of ejectment to recover the possession of 80 acres of land —the E. y2 of the N. E. % of section 24, township 22, range 8 W. — situated in Tuscaloosa county, Ala. Appellant, plaintiff below, claimed title through one Hardy Clements, who died many years ago. By his will Clements disposed of many thousand acres of land. It is claimed by appellant that the land in controversy passed by that will to Mrs Marlowe, the daughter of the testator, who conveyed to the plaintiff. The land was not particularly described in the will; but it is claimed that it was included in the general provision which disposed of the testator’s “Home Place”; it being contended that the particular 80 constituted a [186] part of the “Home Place.” The entire 80, at that time, and for a long time thereafter, was woodland; no part •of it being under cultivation. There was some evidence to show that the particular 80 was used, in connection with the “Home Place,” for the purpose of obtaining ■fire-wood, lightwood, etc. The evidence on this score, however, was very meager. There was also evidence to the effect that surveys, on two different occasions, were made along one side of the 80, though they were not made for the specific purpose of locating the boundaries of the particular 80. Appellee, the defendant below, claimed through a tax deed made by the probate judge of the county to one M. M. Williams on the 20th day of June, 1895, and a mortgage made by M. M. Williams to W. W. Williams, one of the defendants, during the year 1895, a foreclosure deed of this mortgage to one H. B. Ward, made in the year 1904, and a deed,- of practically the same date, by Ward, back to Williams, the mortgagee, and the defendant in this suit. Objections were interposed by the plaintiff to the introduction of each of these instruments on various grounds, and to the introduction of the mortgage specially, because proof of its proper execution had not been made. The record shows that the real contest on the trial was whether or not the defendant had acquired title by adverse possession. For this reason, each of the documents was admissible in evidence as color of title. We do not mean to say that they should, or should not, have been admitted for any other purpose; but that, they being admissible for the purpose indicated, it would have been error to exclude them entirely. It is true that counsel, in some of the objections, state that the documents were offered as muniments of title. [187] but the defendant did not state, or even admit, that they were offered for that purpose, nor did the court rule that they were admissible for that purpose. The plaintiff should have requested the court to limit the introduction to the purpose only for which they were clearly admissible — that is, as color of title. We cannot agree with counsel that a document to show color of title should be executed and proved with the same formality as a document which conveys title. The distinction between the two has been repeatedly drawn by this court, and we think that there is sound reason therefor. See Brannan v. Henry, 142 Ala. 700, 39 South. 92, 110 Am. St. Rep. 55; Rogers v. Keith, 148 Ala. 228, 42 South. 446; Dorlan’s Case, 140 Ala. 283, 37 South. 382, 103 Am. St. Rep. 35, and cases cited. We cannot agree with plaintiff’s counsel that the evidence in this case showed that plaintiff and those under whom it claims title were in the possession of the land at the time defendant and those under whom he claims title claimed to have been in possession, and that the acts of defendant were not the acts of possession of one claiming ownership, but were only those of a reputed trespasser, as to parts of this land. There was abundant evidence from which the jury could find that the possession of the defendant was in good faith, under color of title, and adverse, and that such possession had continued, unbroken, for more than ten years before the bringing of the suit. The record abounds in evidence which, if believed, would support a verdict and judgment for the defendant. For this reason the general affirmative charge could not properly be given for the plaintiff, and for this same reason the other requested charges of the plaintiff were properly refused. [188] It was proper for the court to allow proof by the former tax collector of Tuscaloosa county that Mrs. Marlowe, the plaintiffs grantor, disclaimed ownership of the land in question about the time that Williams acquired the tax deed, and declined to assess, or to pay taxes thereon. Plaintiff had introduced evidence of ■claim and acts of possession on the part of Mrs. Marlowe, of this land; and of course this evidence of the ■defendant was competent in rebuttal. There was likewise no error in allowing proof that the defendant and. his brother, M. M. Williams, had paid the taxes on this land, nor in allowing the introduction of the receipts therefor. Finding no error, the judgment is affirmed. Affirmed. Dowdell, C. J., and Anderson and de Graffenried, JJ., concur.