Aiken v. McMillan, 1 Div. 964

• Court: Supreme Court of Alabama
• Citation: 201 Ala. 280,78 So. 56
• Docket Number: 1 Div. 964
• Parties: AIKEN et al. v. McMILLAN.
• Decision Date: 15 November 1917

78 So. 56

201 Ala. 280

AIKEN et al.
v.
McMILLAN.

1 Div. 964

Supreme Court of Alabama

November 15, 1917

Rehearing Denied Feb. 16, 1918

Appeal from Circuit Court, Baldwin County; A.E. Gamble, Judge.

Suit by B.F. McMillan against Norma Aiken and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Harry T. Smith & Caffey, of Mobile, for appellants.

Brooks & McMillan, of Mobile, for appellee.

SAYRE, J.

Some developments of the controversy between the parties have heretofore had consideration in this court. 182 Ala. 303, 62 So. 519, 189 Ala. 330, 66 So. 624. In this case the controversy takes the shape of a complaint, containing counts in trespass quare clausum fregit, trespass de bonis asportatis, and trover, in [78 So. 57] which appellee sued appellants to recover, as the proof showed his purpose to be, the value of certain timber or logs cut by appellants on a tract of land the title of which is in dispute between the parties.

As going to show title to the timber in controversy, defendants, after proving that they were heirs of Joshua Kennedy, offered in evidence a paper writing, dated August 27, 1806, from Louis Baudin to Joshua Kennedy. Appellants complain of the action of the trial court in excluding this instrument. The matter is not at all free from difficulty, but in McMillan v. Aiken, 189 Ala. 330, 66 So. 624, this court considered the identical question and ruled it against appellants on the ground that the instrument offered as a muniment of title did not purport to convey the land from which the timber in dispute had been cut. A reconsideration in the light of the argument now made against the trial court's ruling leaves us of the opinion that our former decision was correct. Moreover, the ruling was harmless to appellants in any event, for the reason that appellants afterwards connected themselves with title from the government through another channel, and the trial court very clearly instructed the jury that they had shown a perfect paper title to the tract in question. This meant, of course, that the evidence offered by appellants, apart from the paper writing in question, as matter of law sufficed to prove their paper title and put appellee to his proof of a title by adverse possession. This burden appellee assumed and carried to the satisfaction of the jury, and the main question on this appeal arises out of appellants' insistence that the evidence for appellee was not sufficient to take this issue to the jury.

After a careful consideration of the record upon this point, our judgment is that the trial court's treatment of this question was erroneous. In this connection it must be stated that, while the parties in adducing evidence have been at issue as to the title of the land upon which grew the timber or trees in suit, this, however, for the purpose only of showing title to the trees, there was in 1898, and for 15 years thereafter, down to and including the date, in 1913,...