Aiken v. McMillan

Citation106 So. 150,213 Ala. 494
Decision Date15 October 1925
Docket Number1 Div. 287
PartiesAIKEN et al. v. McMILLAN.
CourtAlabama Supreme Court

Appeal from Circuit Court, Baldwin County; John D. Leigh, Judge.

Action by Benjamin F. McMillan against Norma Aiken and John G Aiken. From a judgment for plaintiff defendants appeal. Affirmed.

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

Brooks & McMillan, of Mobile, for appellee.


Several phases of this case or controversies growing out of the land and timber therefrom, are discussed in McMillan v Aiken, 182 Ala. 303, 62 So. 519; Id., 189 Ala. 330, 66 So. 624; Id., 201 Ala. 280, 78 So. 56; Id., 205 Ala. 35, 88 So. 135.

In this suit damages are claimed for trespass to land described specifically as the Francis Girard tract which lies south of Bayou Jessamine, for the wrongful taking of timber, and for the conversion of timber alleged to have been taken therefrom.

This controversy involves the rights of the respective parties as to the timber in and upon section 44, township 1 north, range 2 east, which was originally confirmed to Francis Girard. The land lying north and east thereof is section 40, which was confirmed and patented to Louis Baudin or his legal representatives. The map exhibited and the evidence show a conflict or an overlapping of a portion of the two areas. A portion of this map is shown in a former decision. 205 Ala 35, 88 So. 135.

The insistences of plaintiff are that the land is incapable of habitation or cultivation, and that he had such actual possession as its nature would permit and as is required by law to ripen into adverse possession, it being wild and overflowed land; that he was properly permitted to introduce evidence of the record of title and of his acts of adverse possession in order to draw constructive possession of the whole tract as its legal owner, it not being in the adverse possession of another. That is to say, the insistence of appellee is that he has shown a record title to the conflict from both the Girard and Baudin sources, to all of the section from the Girard source, and that possession required to maintain the suit under the rule of adverse possession.

The appellants' possession is confined to going upon the land in the spring of 1913 and, during the period of high waters, cutting and removing the logs sued for, and immediately thereafter they departed therefrom. They seek to justify their acts under claim of title to the Baudin tract, whatever its area and geographic confines, and as embracing the conflict.

For convenient reference it may be here stated that the claim of record title of appellee as disclosed by the record is: Grant by the United States to Francis Girard, Tract Book, vol. 1, p. 20, on file in Baldwin county, specifically describing the land; confirmation by the United States to Francis Girard, as per map and commissioner's report of date October 30, 1843; survey of the Francis Girard claim as section 44, township 1 north, range 2 east, Exhibit A, by James H. Weakley, surveyor general of public lands in Alabama, surveyor's office, Florence, Ala., examined and approved August 12, 1846; testimony of Frank Girard showing heirship of the grantors in deed to Francis Girard, and heirship of Mrs. Thomas Greig and Joacquine Eslava, grantees in deed from the Baudin heirs to Edward Fisher and Augustine Olivia Fisher, the grantors in appellee's deed to G.W. Robinson and Ben McMillan, of the firm of Robinson & McMillan (this testimony of Frank Girard is to be found on page 17 of the record); the deed from Francis Girard heirs to Robinson & McMillan, dated May 15, 1884, and that from Edward and Olivia Fisher to Robinson & McMillan, dated October 14, 1880; the identity of the individuals composing the firm of Robinson & McMillan (testimony of B.F. McMillan); the deed from Robinson & McMillan by the individual members of the firm and their wives to J. Pollock, dated August 21, 1884 (the evidence shows that J. and Jacob Pollock in the several instruments were one and the same person); declaration by Jacob Pollock that the land was held by him in trust to secure the debts of Robinson & McMillan, dated September 17, 1884; deed from J. Pollock & Co. to Stockton Lumber Company, dated July 13, 1887; deed from J. Pollock as trustee to Stockton Lumber Company, dated March 13, 1891; authorization by the Stockton Lumber Company, its stockholders, and directors, for the transfer of all of that company's assets to plaintiff appellee (testimony of B.F. McMillan is to that effect); deed from Stockton Lumber Company, its stockholders, and directors to B.F. McMillan.

The deeds in this chain of title sufficiently describe the land conveyed as section 44, township 1 north, range 2 east and section 49 lying west of it, and which tracts are included in the Girard grant. Thus is shown the title to the conflict in the plaintiff from the Girard grant or source and from and through Greig and Eslava, grantees in deed from the Baudin heirs. That deed is of date June 3, 1845, and the legal effect of the recitals of said deed was announced on former appeal. 205 Ala. 35, 88 So. 135.

Appellants having introduced in evidence the confirmation of the Louis Baudin grant to the legal representatives of Louis Baudin, offered the report of John B. Hazard and John Henry Owen, commissioners appointed under act of Congress March 3, 1827 (4 Stat. 239), confirming the grant under second section of Act of March 3, 1819 (3 Stat. 528), the patent dated October 11, 1838, subsequently issued to the legal representatives of Louis Baudin, in rebuttal appellee introduced said deed dated June 3, 1845 (heretofore adverted to), from the legal representatives of Louis Baudin to Thomas Greig and Joacquine Eslava, from whom appellee's grantors, the Girards and Fishers (under the testimony of Frank Girard), would inherit said land. On pages 133 and 134 of the record conveyance from Louis Baudin, Varice Nicholas, John and Clestine Campbell, Noble and Mathilda Johnson, Louisa and Delia Nicholas, of date June 3, 1845, is set out, describing the land as follows:

"All that tract or parcel of land situated in the county of Baldwin bounded and described as follows, to wit: Bounded on the north by Bayou Jessamine and extending towards the mouth twenty arpens, on the west by Bottle bayou, on the south by said Bayou Jessamine, and on the east by River Tensaw, which tract of land was confirmed to the parties of the first part by the second section of the act of Congress of the 3d of March, 1819, agreeably to the report of Commissioners John B. Hazard and John Henry Owen," etc.

In this appeal appellants' title is grounded on the copy of a translation of a deed of date June 29, 1839, to a Spanish grant from Louis Baudin to Joshua Kennedy, dated August 27, 1806, recorded in Deed Book Y, records of Mobile county, Ala., pp. 548, 549. The filing date in the probate office is omitted from the certificate before us. At the time of the execution of that conveyance the territory embracing these and other lands was a part of Mobile county, and was included with other lands from Washington county forming the county of Baldwin December 21, 1809. If, therefore, the conveyance was the subject of registration, and before said date duly recorded in Mobile county, where the land was then located, it was not thereafter required to be recorded in Baldwin county. After the formation of the new county, persons dealing with the lands composing the same had knowledge or notice of its history and of the registration laws in force before its separation from the county in which it was theretofore embraced. In the absence of the filing date of the conveyance, we cannot say there was objection to its introduction in evidence because not recorded in Baldwin county, where the land now lies. In this connection it should be noted that record in probate office for such conveyances was provided by the act of 1849-50, p. 28. Theretofore the record was required to be recorded "in any clerk's office" in the district. Aiken's Digest, p. 88.

It is necessary to consider other objections made to the introduction in evidence of said conveyance. It must be borne in mind that we have no record of the original conveyance written in Spanish executed and recorded as provided by territorial law. Aiken's Dig. p. 88 et seq. The certificate of the judge of probate shows a conveyance of record on pages 548, 549, Deed Book Y, etc., of the probate office of Mobile county. The certified copy or record of the translation rejected as evidence was of several documents embraced in the certificate just referred to. These documents were heretofore the subject of consideration by this court. 189 Ala. 332, 66 So. 624. We take judicial knowledge of the records in the case in this court on former appeal. N.C & St. L. v. Crosby, 194 Ala. 338, 70 So. 7. We are informed that the record in question constituted a proceeding as follows: A petition by Louis Baudin to Manuel Gayoso De Lemos, the Governor General of the Province (dated April 27, 1798), for land described as: Tract of land fronting on the north side of Bayou Jessamine and extending towards north below 20 arpens bounded on the west by Bottle bayou, on the south by Bayou Jessamine, and on the east by Tensaw river, in consideration of the clearing of same (189 Ala. 332, 66 So. 624); the order by Manuel Gayoso De Lemos, Governor General of the province, June 28, 1798, declaring that petitioner had cultivated and occupied the land for many years, etc., and directing the commandant to establish him upon the spot which he selected, etc., bounded on Bayou Jessamine, and extending same 20 arpens in the memorial above set forth, it being vacant and without injury to a third party (189 Ala. 332, 66 So. 624), and the...

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