Strange & White v. King , 84 Ala. 212 ( 1887 )

STONE, 0. J.

This is a statutory real action, for the recovery of one acre of land in the south-west corner of the northeast fourth of the south-east fourth of section 29, township 17, range 2 west, in Jefferson county. Under a description, fatally imperfect, an acre of land, corresponding to this as to section, and somewhat as to its location in the section, was in 1873, conveyed by one Waits to Henderson and Marcus Hamilton; and there is some proof that they occupied it for a time. They then abandoned it, and went to parts unknown. Neither of the parties to this suit is shown to claim under either Waits or the Hamiltons, and neither party connects himself'with the title or possession of either of them, by any proof shown in this record. The conveyance from Waits to the Hamiltons, and all claim which either of them could assert, we will dismiss from further consideration, as having nothing to do with the case.

The common source of title of each of the parties to this suit — both plaintiff and defendants — was Morgan G. Wood. King, the plaintiff, claims that in 1878, Wood and wife conveyed the land in controversy to him. That deed was lost, and testimony was offered of its contents. Strange and White’s claim of title was as follows: In 1880 Wood and wife conveyed to Heed & Meade the north-east quarter of the south-east quarter of said section 29, less about one acre in the north-east corner of said quarter-quarter section. Meade conveyed his half interest to Heed in March, 1882, by tbe same description. In June, 1885, Reed conveyed tbe ' one acre of land sued for to Strange & White, the defendants. So, each claimant traces his title back to Morgan G. Wood. But it is shown that Morgan G. Wood derived his title from David Pearson. That deed is in evidence, bearing date August, 1873. It does convey the north-east quarter of the south-east quarter of said section 29, but it excepts from its operation “one acre in the S., W. corner.” That one acre is the land in controversy in this suit. So, neither party connects himself with any paper title coming down from Pearson, the first and oldest claimant shown in this record. The case must be disposed of without any reference to documentary title.

There was no actual taking of possession by either of the parties to this suit, on which to found a right to sue or defend, until King took possession, and commenced improvements, as after shown. — Doe ex dem. v. Clayton, 81 Ala. 391.

In 1886 -King went upon the disputed' one acre, sunk a well, erected a house, and placed a tenant in it. On these facts there is neither conflict nor dispute. These were acts of ownership, and prima jade gave him a right of possession against any other person, who could not show a better title. Such possession will both support and defeat an ejectment, against any one who merely shows a later possession, without title to authorize it. — Anderson v. Melea, 56 Ala. 621; Mills v. Clayton, 73 Ala, 359; Childress v. Calloway, 76 Ala. 128; 3 Brick. Dig. 325, § 47.

On the questions discussed above there was no conflict, or uncertainty in the testimony. They show clearly that plaintiff King was entitled to recover. We need not consider the questions raised on the admissibility of oral proof. They neither did nor could change the result of the trial, for the plaintiff was entitled to a judgment on grounds entirely independent of the testimony objected to.

Affirmed.