Barry v. Madaris , 156 Ala. 475 ( 1908 )

DENSON, J.

Statutory action of ejectment. From verdict and judgment for the defendant in the circuit court, the plaintiffs have apepaled.

The plaintiffs claimed title as the heirs at law of J. W. Barry, deceased. A deed, executed by J. M. Tucker to J. W. Barry on the 1st day of November, 1869, purporting to convey 360 acres o.f land, including the 40 acres in dispute, was offered as evidence by the plaintiffs. There is evidence tending to show that at the time this deed was executed the grantor was ‘in actual possession of a part of the land described in the deed,” but manifestly this falls short of precisely identifying the 40 acres in controversy as any of the part so possessed. Plaintiffs, then, necessarily depend on title by adverse possession under color of title.

J. W. Barry, after receiving the deed from Tucker, moved upon and lived on a 40-acre tract described in the deed and adjoining the one involved in this suit, his residence being about a fourth of a mile from it; and he lived there continuously for 20 years and until his death. The proof for plaintiffs tends to show that this 40-acre tract in controversy was uninclosed woodland. Aside from claiming it, going upon it frequently and having it surveyed on one occasion, there is no evidence tending to show any acts of actual possession by Barry over said tract in controversy, and the acts specified are controverted. After Barry’s death the plaintiffs continued, until a few years before the commencement of this action, to hold possession of the lands, and in the same way (as the evidence tends to show) that Barry held possession.

It may be conceded that being in actual possession of a part of the lands included in the deed would, in the absence of an actual adversary possession, extend such possession to the several tracts (they being contiguous) described in the deed; but the defendant claims title by adverse possession (under color of title) of the lands :sued for, and the evidence tends to show that those through whom he claims were in the actual possession of the lands, claiming as bona fide purchasers, under a deed executed prior to the deed under which plaintiffs claim, and at the time said deed was executed. It also tends to show that such possession was continued, by bis predecessors in title and by bimself, up to tbe time of tbe trial. So there can be no doubt that the question, between plaintiffs and defendant, as to which held the superior title, was one for the determination of the jury, under the evidence, and on proper instructions by the court.

The deed to S. C. Tucker by Wasson was executed in 1865 or 1866, and the evidence tends to show that Tucker was in the actual possession of the land, claiming as a bona fide purchaser under said deed, or at least as holding color of title therefrom. This being true, charges 7 and 8, requested by the plaintiffs, were properly refused for pretermitting this phase of the evidence.— Code 1896, § 1541.

’ Charge 5, in view of the fact that plaintiffs’ deed covers several tracts not in controversy, was calculated to mislead the jury into the belief that, if the grantor was in possession of any one of those tracts, whether the ofie in dispute or not, it would be sufficient; and this, too, irrespective of evidence tending to show that those through whom defendant claims were in actual possession (at the time) of the land sued for, and irrespective of the character of the grantor’s possession. Besides, the'charge is incomplete.

In refusing charge 6 there was no error. It assumed that plaintiffs had made a prima facie case. Unless the jury were reasonably satisfied that plaintiffs had made a prima facie case, no burden rested on the defendant at all. This the charge ignored.'

Charge 2 forms the basis of the sixth ground in the assignment of error. This ground is not insisted on in the brief of appellants’ counsel, and according to our many decisions on the question we must treat the sixth ground as waived.

There is no error in the record, and the judgment is affirmed.

Affirmed.

Tyson, C. J., and Haralson and Simpson, JJ., concur.