Hicks v. Burgess

SOMERVILLE, J. The plaintiff, not showing title either by deed or by adverse possession, and never having had possession himself, could recover only by showing prior possession in some one of his grantors. Conceding that Fred Ross had some sort of possession before and at the time of his death, presumably prior to 1870, it does not appear that his son Gus Ross ever had possession of or did any act of ownership with respect to the disputed strip. The abandonment seems [587] to have been complete. Not having either title or possession at the time of his death, nothing could pass by descent from him to his children. Plaintiff’s connection with a prior possession depends, therefore, upon proof that the minor children of Gus Ross, whose estate he acquired by guardian’s deed, were in possession of the strip either in person or by their guardian; and that their possession continued until it was superseded by the entry and possession of James Hicks in 1901; or else, if discontinued before that event, that there was an animus revertendi. — McCreary v. Jackson Lumber Co., 148 Ala. 247, 41 South. 822; Fletcher v. Riley, 148 Ala. 286, 42 South. 548; Id., 169 Ala. 433, 53 South. 816. The burden of affirmatively proving these issues was upon plaintiff, and he has clearly failed to do so. It is true that the guardian, Mrs. M. R. Ross, who was the widow of Gus Ross, stated that she was in possession of the land described in the deed about 18 years after Mr. Ross’ death. But it does not appear that this was in the capacity of guardian, nor, indeed, that she was guardian at that time. But, waiving this infirmity, her whole testimony shows that she never had any sort of possession of the particular land in dispute. She stated positively that she never saw it, never was on it, and knew nothing about it. It is clear that her later statement that she was in possession (“that is, had control of it”) was but her opinion or conclusion based solely upon the fact that she had rented the land generally, without any knowledge as to its occupation by any tenant of hers.. Where a witness states an opinion or conclusion which is irreconcilably opposed to the stated facts upon which it is founded, the opinion or conclusion is a testimonial nonentity and raises no conflict with the stated facts. [588] So Mrs. Ross’ testimony did not authorize the submission to the jury of the question of her actual possession of the land in a legal sense, for rational minds cannot fairly differ as to the meaning and effect of what she said upon that subject. This conclusion is not opposed to the first headnote in McCreary v. Jackson Lumber Co., 148 Ala. 247, 41 South. 822, for there was no exclusion of other acts as here. It is to be observed that none of the Rosses had any color of title to the 40 or to any part of it; hence the requirement of actual possession of the disputed strip. And of course plaintiff’s color of title did not give him constructive possession. — Fletcher v. Riley, 169 Ala. 433, 53 South. 816. For the reasons' stated, we hold that the trial court erred in refusing to give for defendant the general affirmative charge as requested. We think the court was also in error in allowing plaintiff to ask his witness, Mrs. Rusk, whether Fred Ross “controlled possession” of all of the fish trap 40. It is well settled that a witness may state that a party had possession of land (Cooper v. Slaughter, 175 Ala. 211, 57 South. 477, and cases cited) ; .and it has been held also that a witness may state that a party has controlled land (Turnley v. Hanna, 82 Ala. 139, 2 South. 483; Woodstock Iron Co. v. Roberts, 87 Ala. 441, 6 South. 349; Nelson v. Shelby, etc., Co., 96 Ala. 515, 531, 11 South. 695, 38 Am. St. Rep. 116). “Control” is a word of very indefinite meaning. In popular parlance it is not, in its present application, necessarily confined to acts of possession, as witness the comments of Coleman, J., in Nelson v. Shelby, etc., Co.,, 96 Ala. 530, 531, 11 South. 695, 38 Am. St. Rep. 1161 HoAvever, in so far as it may import acts of possession, it refers to that Avhich is open to the witness’ observa1 [589] tion, and which may therefore be stated by him as a fact a shorthand statement of several facts, all of which he might have observed. Bnt to say that a party controlled, not the land, bnt the possession of the land, is upon its face a mere opinion or conclusion, the introduction of which can serve no useful purpose, and which should best be excluded. We do not hold that its admission was in this case reversible error, especially in view of the fact that a simple cross-examination might have exposed its worthlessness as evidence. The guardian’s deed placed in evidence by plaintiff was not inadmissible merely by reason of defendant’s actual adverse possession of the land at the time of its execution. The deed was the consummation of a judicial sale; i. e., a sale made under the order and decree of an authorized court, to which the law of maintenance never did apply. — Humes v. Bernstein, 72 Ala. 546, 556; Sibley v. Alba, 95 Ala. 191, 10 South. 831; 6 Cyc. 874e. The judgment will be reversed, and the cause remanded for another trial in accordance with the foregoing principles. Reversed and remanded. Anderson, C. J., and McClellan and Mayfield, JJ., ■concur.