Rogers v. Keith , 148 Ala. 225 ( 1906 )

HARALSON, J.

— The suit was brought by Margaret Keith and others against John H. Rogers, to recover possession of the N. 1-2 of section 34, township 2 N., range 1 W., in Mobile county. Plaintiffs are the heirs at law of John Keith, deceased. There was evidence that said Keith went into possession of the lands in 1885, claiming under a purchase from the state; that his possession continued until his death in 1887, and that thereafter plaintiffs, through their agent, continued in possession under claim through their father. Plaintiffs then offered in evidence a receipt from the State Treasurer for the purchase money paid by John Keith to the state, and also a deed from the Auditor. The admission of these papers is assigned as error and insisted upon by appellant’s counsel.

There was no error in admitting the receipt in connec- ■ tion with the other evidence of purchase. It tended to show that the possession was under a bona fide claim of purchase, and not in subordination of the title of some one else, nor the possession of a bare trespasser.

The deed from the State Auditor, admittedly insufficient as a muniment of title for the want of an acknowledgment or subscribing witness, rvas offered and admitted as color of title only. The description of the deed is as follows: N. 1-2 of Sec. 34, township 2, range 1, Mobile. county. It will be noted there is an omission to state whether the township is north or south of the base line, and east or west of the meridian used in the government surveys. The deed recites that the lands were assessed and sold for taxes as the property of the J. A. Roper estate, but there was no- evidence that the lands in suit belonged to such estate. It is insisted that' as there are more than one section, township and range in Mobile county of the numbers- given and that the deed is void for uncertainty of description, and, therefore, inadmissible as evidence.

Such an-instrument, if offered as a muniment of title, and not rendered certain by other descriptive matter therein, is void and inadmissible.—Brannan v. Henry, 142 Ala. 698, 39 South. 92; Devlin on Deeds, 1010.

Is it for like reasons inadmissible as color of title? The general rule is, “If the deed offered is void because of the uncertain and indefinite description of the land conveyed, such a deed would not convey (operate as) color- of title, and possession under it would be limited to ‘Possessio pedis.’ ” —Brannan v. Henry, supra,, and authorities there cited. The reason for this rule is found in the purposes for which color of title is received in actions of ejectment founded upon prior possession, or title by adverse possession. These purposes are, first, to show that the possession or iginated and continued under claim of right; second, to define the extent of possession. Actual possession of a portion is considered as extending to the boundaries named in the color of title under which, possession, is held. If the instrument does not describe the lands it cannot shed light upon the character of possession asserted, neither can it determine the boundaries of such possession when it does not define the boundaries.

Keeping in view the reason of the rule as stated, we proceed to consider the instrument before us. The defect of description here is not the extent or area of lands sought to be conveyed. It calls for a half section of land —a named section, township and range. In this instance the defect arises from the fact, that it is equally applicable to several tracts. There was evidence that claiming under this deed the purchaser took possession of the particular lands in suit, that he claimed no other.

This evidence was admissible upon independent grounds not connected with the instrument and was admitted without objection. The deed, in connection with this evidence, defines with certainty the particular lands claimed and fixes the boundaries as clearly as if full in all respects.

In 1 Cyc. pp. 1090, 1091, after stating the general rule, it is said : “A description, though indefinite, is sufficient, if the court can, with the aid of extrensic evidence which does not add to, enlarge, or in any way change the deseripution, fit it to the property conveyed by the deed.” Possession is in the nature of the case a matter of parol proof. It may be and often is sufficient within itself to sustain an action of ejectment. All sound reason supports the prosition, that where there is parol proof, admissible within itself, showing the possession of lands under claim of purchase, an instrument which taken in connection with such parol proof defines with certainty the extent and boundaries of the lands is admissible in evidence. The reasons for excluding such instruments do not apply to such cases. The reasons for admitting color of title, do apply to such instruments, and we think there was bu error in admitting the deed.

The defendant’s claim of title also originated in a. purchase from the state in 1902. He offered in evidence among other things, a deed from the State Auditor. The title sought to be conveyed was .derived by the state by purchase at a tax sale, founded on an assessment of the property of J. J. Sullivan. It is affirmatively shown that Sullivan neither had nor claimed title to the property; that his acts of possession were solely as agent for plaintiffs. This deed was not evidence of title. It was not offered as color of title. As color of title it would have placed defendant in position to set up an outstanding title, but no such evidence was offered.

It is unnecessary to decide, whether, under the evidence, the possession of plaintiffs was so continuous and adverse as to ripen into a perfect title. The evidence is without conflict that plaintiffs had prior possession under claim of title. “One ivho has prior possession of lands, or exercising acts of ownership, may, upon that fact alone, maintain ejectment against one' afterwards found in possession, unless the latter set up paramount title in himself, or in some other person.”—Anderson v. Melear, 56 Ala. 623; Strange v. King, 84 Ala. 214, 4 South. 600; Reddick v. Long, 124 Ala. 260, 27 South. 402; Campbell v. Bates, 143 Ala. 338, 39 South. 144.

The judgment of the circuit court is affirmed.

Weakley, C. J., and Dowdell and Denson, JJ., concur.