Gist v. Beaumont , 104 Ala. 347 ( 1893 )

COLEMAN, J.

This was an action in ejectment, brought by the appellee against the appellant. It may be safely asserted that neither party at the trial held a perfect legal title. The plaintiff introduced evidence tending to show possession prior to that of the defendant, and in connection with the facts of prior possession, introduced' in evidence, against the objection of the defendant, an instrument in writing, purporting on its face to be a conveyance of the lands to plaintiff, signed by one Cooper, as Mayor. The instrument bore date January 4th, 1882, and recited that the lot had been sold for non-payment of municipal taxes. This instrument had been recorded, but there was no proof of its execution, nor had it been acknowledged before any officer. One of the grounds of objection to its introduction, was that it had not been acknowledged as required by law, and there had been no proof of its execution. The court admitted the instrument merely to show color of title and extent of possession. In this the court did not err. "Color of title is that apparent right in the tenant which he has derived by his paper title. He who holds under a paper title which apparently gives him the right to the land, which would lead an honest man to the conclusion that the right to the land passed by the deed * * * must be considered as holding under color of title.” Saltmash v. Crommelin, 24 Ala. 347. The deed purported to be signed and duly attested. Neither proof of its acknowledgment nor its execution was necessary to its introduction to show color of title. — Ala. State Land Co. v. Kyle, 99 Ala. 474; Mclnerny v. Irvin, 90 Ala. 275 ; Alexander v. Savage, 90 Ala. 383. There was no error in admitting, as evidence of claim and ownership, the survey of the lot, the driving of stakes around the lot, the sign posted upon it, the payment of taxes, the-offer of sale of the lot by plaintiff and by his agents. These were circumstances and facts proper to be considered by the jury on the question of claim of ownership, and also of- actual possession. .......

In ejectment the plaintiff must recover on the strength of his own title, and not on the weakness of his adversary ; and this principle applies except that a plaintiff may recover upon proof of previous possession alone as against a bare trespasser. Mere color of title without actual possession of some part of the premises will not support ejectment against even a trespasser. Mere color of title does not give constructively actual possession. Lucy v. Tenn. & Coosa R. R. Co., 92 Ala. 246 ; Black v. Tenn. Coal, L. & R. R. Co., 93 Ala. 109; Doe ex dem Mills & Hooper v. Clayton, 73 Ala. 359; Torrey v. Forbes, 94 Ala. 135 ; Alexander v. Savage, 90 Ala. 383 ; Green v. Jordan, 83 Ala. 220 ; Stovall v. Fowler, 72 Ala. 78.

The defendant introduced in evidence a quit-claim deed of conveyance dated January 10th, 1887, signed by one William Challen, which was duly acknowledged and recorded. There was no evidence of title in or possession by the grantor Challen at any time. The defendant testified that at the time of his purchase from Challen, he examined the lot, that it was vacant, and that there were no signs of claim or possession of the lot by any one ; and that he took actual possession at once under his purchase and improved the lot by building on it, and has held possession ever since. The defendant introduced other evidence tending to show that since 1882, there had been no stakes driven up around the lot, and no sign board placed on it with plaintiff’s name marked on it, and no visible facts to show that any one had actual possession of the lot, and that he knew of no claim except that of Challen. The material question to be determined in the case, and the one decisive of the parties’ rights, is, as to whether the plaintiff had actual adverse possession of the lot, claiming it in his own right, at the time of the purchase by defendant from Challen, and the execution of the quit-claim deed to him, and his possession under that purchase. If plaintiff was in actual adverse possession at that time, the quit-claim deed from Challen was a nullity, as against his actual adverse possession, and the defendant’s possession was that of a trespasser. Against the possession of a mere trespasser, plaintiff’s prior actual possession, if he had such, will prevail. On the other hand, if the plaintiff was no.t in actual possession at the time' the defendant took possession under the quit-claim deed from Challen, then he was not a naked trespasser, so far as plaintiff’s rights are involved, and under these circumstances, the plaintiff could not recover on prior ■ possession alone. Or if plaintiff went into actual possession in 1882, and subsequently abandoned such possession, and had not reentered at the time of the purchase and entry by the defendant in 1887, the latter was not a trespasser. The plaintiff not having the legal title, it required actual possession of the lot by him, to render the entry by the defendant a trespass. These questions under proper instructions must be determined by the jury.

The second charge given for the plaintiff was.calculated to mislead. It was erroneous, also, in that it ignores the evidence of the defendant, which tends to show that plaintiff was not in possession at the time the possession was entered upon by the defendant. The principles declared cover the charges i*equested by the defendant. The undisputed evidence as it now appears in the record shows that the plaintiff must recover, if he recovers at all, upon the proposition of prior actual possession by him, and that defendant was a bare trespasser. Several of the charges requested by the defendant were erroneous in that they declare as matter of law that the possession of the defendant was not that of a bare trespasser. This, as we have seen, is a question of fact for the jury.

Reversed and remanded.