Doe ex dem. Christopher v. Webb , 171 Ala. 638 ( 1911 )

MAYFIELD, J.

This was a common-law action of ejectment, by appellant against appellees, to recover the possession of lots 3 and 4, block 16, Hill & Cansler addition to the city of Gadeden, Ala. The defendants disclaimed all the lands sued for, except that part which may be south and east of the fences as they ran at the time of the filing of this suit: First, east from a hickory tree to Twelfth street; secondly, south from said hickory tree towards Chestnut street. In this disclaimer, defendants suggested that the suit arose over a disputed boundary line; the defendants claiming that the north and west boundary lines of their property — and therefore the south and east boundary lines of the plaintiff’s property — are marked by two fences extending at right angles from a certain hickory tree, while the plaintiff claims that said boundary lines lie, respectively, south and east of said fences.

The judgment entry shows that the case was tried upon this issue of a disputed boundary line, and the bill of exceptions shows that the only controversy was whether these fences marked the boundary lines of defendant’s property, or whether they had encroached upon the property of plaintiff, and, if so, how much. Both parties claim through a common source of title— one O. P'. Hill. Hill conveyed one square acre of ground out of the southeast corner of the 40-acre tract, of which all the land in question is a part. Subsequently Hill conveyed, other parts of this 40 to various parties, from whom plaintiff derived title by regular and proper conveyances. About 1887 the part of the 40 not conveyed to Milly Webb was surveyed into lots, blocks, streets, and alleys, and as so conveyed, was platted, recorded, and made an addition to the city of Gadsden. Lots 3 and 4 of this survey are the lots described by plaintiff in his suit.

It was not intended by Hill, in his subsequent conveyances, to convey any part of the acre which he had deeded to Milly Webb in 1870; nor did the grantees, including the plaintiff, claim any portion of that acre. The real dispute and contention was over plaintiff’s claim' that Hill only conveyed a square acre, to be taken out of the southeast corner of this 40-acre tract, and that the northern and eastern boundary lines would not extend as far as is claimed by the defendants. If it had been intended to convey only a square acre out of the exact southeast corner of this section, then plaintiff’s theory would be well grounded, and the deed would not have conveyed the land in dispute; that is, plaintiff’s contention as to the boundary lines would be correct. But the defendants claim that, before the deed was made by Hill, he surveyed off the particular acre, marked its boundaries, and made the hickory tree in question the northwest corner of the acre, instructing Milly Webb, the grantee, and her friends and children, including the defendants, never to allow that tree to be destroyed, because it was the monument that marked the northwest corner of her land; that a fence was thereupon built, inclosing the acre granted, and that this fence was run east and south from this hickory tree to the lines of the particular 40 described; that it was so fenced when this deed was made in 1870, and that the fence remained in the same position until this suit was brought, which was for nearly 40 years, with the exception of a short time, when the plaintiff removed a part of it to the point claimed by him as the line; that.the fence was afterwards restored by the defendants, and now remains substantially where it was originally erected when the deed was made.. , ......

Defendants had .witness .after witness 'to testify to substantially this state of facts. The plaintiff, however, claims that this fence is not now where it was originally placed, and that it has . been in this position for only a few years before suit brought; that, as the strip in question was not included in the description in defendant’s deeds, they have not acquired title by adverse possession. The question of title to this strip of land in dispute, which depended entirely upon the boundary line, was a question of fact, and not one of law. If plaintiff’s evidence is true, the strip belongs to plaintiff; if defendant’s is true, it belongs to defendant.

The facts,, as" well as the law, were tried by the court Avithout a jury, and judgment was rendered for defendants, The trial court had all the witnesses before it, could see their demeanor on the stand, and weigh their evidence. We are remitted to a mere reading of that evidence; and we are not persuaded that the court erred as to its finding of the facts necessary to support the judgment rendered. It is certain that there is ample evidence to support it, if the court believed that part of the evidence to be true. It is evident that the court believed it, from its finding in accordance therewith. If defendants’ evidence was true, they and their mother had been in the possession of this strip for nearly 40 years, claiming it as their own against all the world. This was certainly sufficient to defeat the title of the original grantor, O. P. Hill, and those claiming through him, if his deed never conveyed it. So it is unnecessary to decide whether the deeds in question described it or did not describe it.

The trial court did not err in allowing the defendants to introduce their deeds in evidence. They were clearly admissible and proper for the consideration of the court on the trial of the issues involved. They related to the land in question, and it was for the court to say whether or not they described it. The court could not decide that question without an examination of the deeds.

There was no error in excluding the deeds offered by plaintiff. They did not relate to, or purport to describe, the land in question, and were not binding upon the defendants in this suit.

The act of the Legislature of February 11,1893 (Laws 1892-93, p. 478), as to the recording or registration of adverse claims of title to land, had nothing whatever to do with the case. If the defendants, or Milly Webb, under the undisputed evidence in this- case, had title, they acquired it long before the passage of this statute. They had been under this claim of title, whether it be based upon the deed or upon adverse possession, in the continuous, undisputed, open, and notorious possession of this land for more than 20 years before the passage of this statute. They do not insist upon, or claim to have acquired, any title subsequent to the passage of that act.

No error appearing, the judgment is affirmed.

Affirmed.

Dowdedl, C. J., and Simpson and McClellan, JJ., concur.