Alexander v. Wheeler , 69 Ala. 332 ( 1881 )

SOMERYILLE, J.

The recital in the bill of exceptions in this case, that “ the foregoing evidence being before the jury,” the court gave certain charges which appear in the record, shows with sufficient certainty that the evidence recited is in substance all that was introduced. It was so held in Wallcer v. Carroll, 65 Ala. 61, overruling previous decisions which held .the contrary.

The present action is one under, the statute, in the nature of éjectment. The chief contention was as to the true western boundary bme of the land for which suit was brought, the plaintiff contending that a certain strip in dispute, but a few feet wide, was a part of the west half of the northeast quarter of a section described in his complaint, and the defendants that it was included in the east half of the northwest quarter •of the same section. The pleadings raise a further contention :as to small parcel of about one acre in the northeast corner of the tract sued for by the plaintiff.

Some confusion is apparent in the whole conduct of the case 'in the court below, by reason of the conflicting character of the pleas interposed by the defendants. In the first place, there is an admission of possession to the extent of the one acre piarcel, and a plea of “ not guilty ” as to the alleged unlawful withholding of it. Next follows a disclaimer, denying possession of any other part of the lands for which suit is brought. Then follow two pleas setting up the statute of limitations, alleging adverse possession, under claim, of title, respectively, for ten and twenty years, the benefit of which could have been obtained under the “ general issue,” if pleaded to the whole action.

A plea of not guilty would be an admission of possession by the defendants, being equivalent to the consent rule at common law, and is, therefore, clearly repugnant to, and inconsistent with a plea of disclaimer. The interposition of the plea of not guilty would, under our practice, as held by this court, be a waiver of the plea of disclaimer. It would be an effort to admit and deny possession both in the same breath, which is not permissible under the consent rule, as established in the 34th Birle of Practice in the Circuit Courts. — Bernstein v. Humes, 60 Ala. 582; Code of 1876, §§ 2962-3.

In like manner, and for similar reasons, it is not permissible to set up, by special plea, the statute of limitations under an adverse possession, and accompany it with a plea of disclaimer, unless the two pleas are made applicable to entirely different parts of the premises in controversy. ' The plea of disclaimer was, under this principle, waived by the defendants, and their .admission of adverse possession must be construed to relate to the entire premises claimed by the plaintiff.

Many of the charges, given by the court below, involve mere fundamental principles of the most familiar character. Among them are, that the mere possession of land will not constitute adverse possession, and that the law presumes that ■every one in possession, in the absence of proof to the contrary, holds possession of land under the true or real owner.

It is equally well established, that adverse possession is a fact which must be proved, and the burden is always cast upon him who interposes and relies upon it as a defense. But an actual occupancy and substantial enclosure of land by a defendant, or hy those under whom he derives title or possession, accompanied by acts of ownership inconsistent with the' fact of ownership in another, is presumptively adverse possession, liable to be rebutted by countervailing proof to the contrary. — Jackson v. Woodruff. (1 Cow. 276), 13 Amer. Dec. 525.

This case, under the pleadings, was not one in which previous demand of possession was requisite in order to. maintain the .action. Where one in possession of land, either as tenant or under an executory contract of purchase, repudiates his contract by an assei’tion of hostile possession, it is such a wrongful act as determines his prior relationship, and dispenses with demand of possession by the plaintiff, or notice from him to the tenant to quit. The law does not exact a useless procedure. Right v. Beard, 13 East. 210; Doe v. Jackson, 1 Barn. & Cres. 448; Prentice v. Wilson, 14 Ill. 91.

The matter of main controversy, in this case, relates to the principles of law bearing on the real and the assumed boundary line between the rival contestants for the ownership of the intermediate disputed tract.

We take it to be settled, in this regard, that if two proprietors of adjoining lands agree upon a dividing line between them, and erect a partition fence upon such assumed boundary line, each occupying up to the fence, their possession is mutually presumed to be adverse to each other, and if continued for the length of time prescribed by the statute of limitations, will ripen into a perfect title. — Brown v. Cockerell, 33 Ala. 38; Rider v. Maul, 46 Penn. St. 376; Burrell v. Burrell, 11 Mass. 294; 3 Wait’s Act. and Def. 103.

The quo animo, or intention with which possession is taken and held by a defendant, must always constitute an essential consideration. Hence, if a partition fence be extended by one of two adjacent owners, so as to. embrace within his enclosure a portion of his neighbor’s land, through mere inadvertence, or ignorance of the location of the real line, or for purposes of convenience, and with no intention to claim such extended area, but i/ntendi/ng to claim adversél/y onl/y to the real or true boundary line, wherever it might be, such possession would not be adverse or hostile to the true owner. There can be no adverse possession-without a coincident intention to claim title. — Brown v. Cockerell, 33 Ala. 38. If the claim, in other words, is not up to the partition fence as extended, but only to the true line, there would be no adverse holding of the new enclosure, but only up to the true dividing line. — Burrell v. Burrell, 11 Mass. 294.

But the rule is different where the fence is believed to be the true line, and the claim of ownership is up to the fence as located, even though the established division line is erroneous, and the claim of title was the result of the mistake. In such case there is a clear intention to claim to the fence as the t/'ue line, and the possession does not originate in an admitted possibility of mistake. One of the chief designs of the statute of limitations is to compose controversies growing out of mistakes and errors of this description, which tend so greatly to the disturbance of land titles. — Burdick v. Heivly, 23 Iowa, 511; Tyler on Eject. 138; Crary v. Goodman, 22 N. Y. 170; Hunter v. Chrisman, 6 B. Monr. 463; Enfield v. Day, 7 N. H. 457. Knowledge, however, by one in possession claiming title, that his title is defective, does not generally prevent such possession from being regarded as adverse. The test is the actual claim, and not the bona fides of it. — Riggs v. Fuller, 54 Ala. 141; Manly v. Turnipseed, 37 Ala. 522.

In all cases where the evidence shows that the entry of the defendant upon the premises in dispute is merely permissive in its inception, being allowed under a mere license from the true owmer as a matter of favor, possession under it can become adverse only by clear, positive, open and continuous assertion of title, hostile to such owner, and actually or constructively brought to his knowledge. — Collins v. Johnson, 57 Ala. 304; Medford v. Pratt, 4 Pick. 222; Kirk v. Smith, 9 Wheat. 241. Presumptively, therefore, if there be a parol exchange of lands for purposes of mutual tenancy, the possession would not be adverse, but permissive. But even in such cases, if the proof show a hostile claim of title by either of the occupants, possession for ten years under such claim may mature into a good title, under the principles above enumerated. But the statute of limitations will not run, if there be, during such period of time, a recognition of the real owner’s title, because the possession then ceases to be adverse. The burden of proving the possession adverse, however, as above stated, is always upon the person alleging it. — Collins v. Johnson, 57 Ala. 304.

Under these principles, charges numbered 5, 8, 9, 10, and the second charge numbered 6, vrere properly given by the court below; and charge numbered 3, requested by the appellants, should have been given as requested.

Charges 1 and 2, requested by appellants, were properly refused, because they ignore the principle that mere adverse possession, unless continuous, open and notorious, will not confer title, or unless being uninterrupted it is otherwise brought home to the knowledge of the true owner.

The testimony of the witness, Howell, was improperly admitted, showing that, after the commencement -of the suit, the plaintiff and tne defendant agreed that he might survey the disputed boundary line, and that each party would abide by the result of such survey, and pay half the costs. This, we think, in view of the pending litigation, must be taken as a mere proposition of compromise, and can not operate as an admission of right prejudicial to either side. The policy of the law favors amicable adjustments of litigation, and therefore protects negotiations made bona fide for their settlement, regarding them in the nature of confidential overtures of pacification. The modern and more honest doctrine, we think, does not require that such propositions should be made expressly as “ without prejudice,” in order to exclude them from being introduced in evidence as an implied admission of liability. — 2 Whart. Ev. § 1090. The admission allowed to go to the jury in Brown v. Cockerell, supra, was not of this character. Such an agreement, being by parol and relating to lands, would, of course, be offensive to the statute of frauds, as a mere agreement.

The court should have construed the pleadings as matter of law, and should not have submitted their construction to the jury, as the seventh charge given might be interpreted to signify. The pleadings being explained by the court, no one could be prejudiced by any reference being made to them by the jury during their deliberations, for the purpose of refreshing their memory as' to any fact to which these papera were pertinent.

There was no need on the part of the plaintiff of any offer to rescind any pa/rol exchange of lands made between those under whom they respectively held, as a condition precedent to-the commencement of this suit. If the plaintiff had the legal title to the lands sued for, and the claim on his part was not barred by lapse of time, he would be entitled to recover, in the absence-of a valid agreement by which the right of possession had been parted with or relinquished.

The charges, other than those above noticed, are either abstract, as being unsupported by the evidence set out in the bill of exceptions, or are misleading, as being susceptible of easy misinterpretation, or they are unnecessary to be considered in view of the waiver of the plea of disclaimer by the defendants.

But one other matter Jremains for our consideration. The verdict of the jury is in the following words: “We, the jury, find for the plaintiff the land rwnning to the Fergv,sson a/nd Allen li/ne, and assess his damages at thirty dollars.” The judgment follows this verdict in the description of the land. It is urged that both the .verdict and the judgment are void for uncertainty. "We are of opinion that the point is well taken.

The rule of law is, that every judgment of a court of justice must either be perfect in itself, or capable of being made perfect by reference to the pleadings, or to the papers on file in the cause, or else to other pertinent entries on the court docket. Freeman on Judg. § 54; Dickerson v. Walker, 1 Ala. 48; McClellan v. Cornwell, 2 Cald. 298.

So verdicts, in like manner, can not be supplemented by intendment, or by reference to mere extrinsic facts. — Sewall v. Glidden, 1 Ala. 52; Clay v. The State, 43 Ala. 350.

A general verdict, it is true, in- favor of the plaintiff, for the lands described in the complaint, has always been held to be good in actions of ejectment. — Tyler on Eject. 580 ; Chapman v. Holding, 60 Ala. 522. But where the verdict is special, as being for a part only of the premises, or the finding has no-reference to the description given in the pleadings, the boundaries of the land recovered must be designated with reasonable certainty, such as to enable the court to award judgment on it, otherwise it can not be sustained, being void for uncertainty. Code of 1876, § 2967; Tyler on Eject. 580, 735, 821; Sturdevant v. Murrell, 8 Port. 317; Bennett v. Morris, 9 Port. 171.

The verdict of the jury, in this case, fails to conform to these requirements, and is too defective to support any judgment.

The court below erred in refusing to vacate both the verdict and judgment on motion of the appellant, as also in its rulings as above particularly specified. Its judgment must, therefore, be reversed and the cause remanded, which is ordered accordingly.