Smith v. Steiner , 172 Ala. 79 ( 1911 )

ANDERSON, J.

This is an action of ejectment for the recovery of the S. y2 of S. W. % of the N. E. % of section 30, township 9, range 17. The plaintiffs never proved title to the land, nor actual possession .of any part of the forty of which the land involved is a part, in their grantors or themselves, prior to the actual possession of the defendant.

They did show color of title to the entire forty, and attempted to show actual possession to the N. %, and which, if true, would, under their color of title, extend their possession to the S. y2, if not in thé actual possession of another. The plaintiffs did not show actual possession of the N. y2, in themselves or their vendors, prior to- the defendant’s actual possession of the S. y2.

The witness Browder did testify that Powell came down there, prior to 1899, to look after the land for Flowers, but this, of itself, did not show actual possession of the N. y2 of the forty, and the witness, on cross-examination, showed that Powell, nor any one else, had been in the actual possession of any part of the forty, before the defendant went into the actual possession of the S. y2 of same.

The plaintiffs also attempted to establish a possession by a surrender of possession by the defendant to Maj. Steiner, but which was denied by the defendant. It might be conceded, however, that this contention was true, yet the proof shows that the defendant continued in the possession many years thereafter, and it does not appear that the surrender to Maj. Steiner was for the benefit of plaintiffs or their grantors.

The deed from Flowers to the plaintiffs does recite a mortgage from certain Steiners to Flowers, but the proof does not show that Maj. “Genie Steiner” was one of the parties to the said mortgage, and, if it did, these recitals would at most be prima facie evidence only as against Flowers and his privies, and could not he evidence against this defendant. — Ayers v. Roper, 111 Ala. 651, 20 South. 460; Naugher v. Sparks, 110 Ala. 572, 18 South. 45. The plaintiffs not having shown title to the land or possession, either in themselves or their grantors, did not make out a case for the jury, and the trial court erred in not giving the general charge requested by the defendant, and the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Mayfield, Sayre, and S'omervillb, JJ., concur.