Middlebrooks v. Sanders , 180 Ala. 407 ( 1913 )

SOMERVILLE, J.

Appellant brought ejectment for a strip of land 26 feet and 8 inches wide, lying between the respective properties of plaintiff and defendant in the city of Dothan. Jerkins, the original owner of the entire tract, had verbally agreed to convey to one Folsom a southwest corner lot facing 105 feet on Foster street on the west. The street corners not being located on the ground, the northwest corner of the Folsom lot had not been definitely located, and hence its future northern boundary was not known. Nevertheless, under those conditions Jerkins executed a deed to one Pilcher, through whom defendant claims, making the northern boundary of the Folsom lot the southern boundary of the Pilcher lot, which faced 120 feet on Foster street. After the deed was made to Pilcher, his lot was measured off and the line agreed to between him and Jerkins. . Afterwards a deed was made to .Folsom but for a less frontage than originally contemplated, so that between the Folsom lot, as actually conveyed, and the Pilcher lot, as actually located and held, there remained a strip of about 26 feet. Still later Folsom sold his lot to plaintiff, Mrs. Middlebrooks, and in 1908 Jerkins executed to her a deed to the lot lying between the Sanders (Pilcher) lot on the north and the Middle-brooks (Folsom) lot on the south, with no other mode of description. It is obvious that, so far as the paper title is concerned, the inquiry hinges upon the location of the northern boundary of the Folsom lot as originally known to and mutually understood by Jerkins and Pilcher.

The uncontroverted testimony shows that defendant, Mrs. Sanders, took actual possession of a lot facing 120 feet on Foster street, Avhich was fenced on the south, and that several years later she removed this fence' and built a new one 26 feet further south, thereby inclosing the western portion of the disputed strip; the neAV fence not extending across to the eastern boundary. This, according to Jerkins, Avas pursuant to a permission given by him to defendant’s husband, who had charge of her land. On the issue of defendant’s claim of adverse possession, the evidence was confused and conflicting, and the issue was clearly one for the jury.

On the written request of defendant, the trial judge instructed the jury, upon the usual hypothesis, to “And for the plaintiff for a strip of land on the south side of the land sued for 6 feet and 9 inches wide on the west side, and 12 feet and 5 inches Avide on the east side of said land,” and also to find for the defendant for the balance of the land sued for. We find nothing-in the record to justify these instructions. They invaded the province of the jury on the issues of title by deed and adverse possession, as to which the evidence was, to say the least for plaintiff, in material dispute, and were therefore erroneous if the evidence shoAvn by the bill of exceptions was all the evidence before the court. But the bill of exceptions does not purport to set out all the evidence nor all of its tendencies. And in the action of ejectment, where all issues and all defenses may be made under the general issue, we must presume that there was evidence to justify what otherwise appears to be an unwarranted arbitration of the issue by the court.—Beard v. Du Bose, 175 Ala. 411, 57 South. 703, wherein ejectment cases are shown to be excluded from the rule of decision announced in Baker v. Patterson, 171 Ala. 88, 55 South. 135, and Handley v. Shaffer, 177 Ala. 636, 59 South. 286. On the showing of the bill, the trial court will not be put in error for giving the charges complained of.

The question to plaintiff’s witness Jerkins, “After you deeded that lot to Mr. Folsom and the other lot to Mr. Pilcher, did you then have a strip of land -remaining there?” called for the conclusion of the witness and invaded the province of the jury and was therefore properly excluded on defendant’s objection.

There was no error in allowing defendant’s question to her witness, Sanders, “Where were the boundaries of this land on the south side?” While the deed to Pilcher furnished the means for locating the boundaries, their actual location was an independent inquiry.

We find no merit in the assignments of error, and the judgment is affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.