Bowles v. Lowery

• Court: Alabama Supreme Court
• Writing for the Court: McCLELLAN, J.
• Citation: Bowles v. Lowery, 181 Ala. 603, 62 So. 107 (Ala. 1913)
• Decision Date: 15 April 1913
• Parties: BOWLES v. LOWERY.

62 So. 107

181 Ala. 603

BOWLES v. LOWERY.

Supreme Court of Alabama

April 15, 1913

Appeal from Circuit Court, Fayette County; Bernard Harwood, Judge.

Ejectment by Mary Lowery against John L. Bowles. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The facts sufficiently appear from the opinion. The following are the charges referred to in the opinion:

"If the jury is reasonably satisfied from all the evidence that plaintiff's husband acquired actual possession of the land sued for in 1871 or 1872, and that her husband kept continuous possession, claiming it as his own, cutting timber thereon, such as sawlogs, timber, firewood and cross-ties, and cleared a portion of said land and cultivated it continuously for 25 or 30 years, this adverse possession would ripen into a title, and plaintiff would be entitled to recover the land sued for, together with the reasonable rental value for its detention as shown by the testimony.

"(2) Under the evidence in this case the defendant, if he had any title to the land sued for, has only such title as he may have gained by adverse possession of the land, and he has no title by adverse possession unless he has for some 10 years together, without interruption, been in the notorious and exclusive possession of the land, in open hostility to all other persons claiming title to it."

"(7) The deed or instrument purporting to have been executed by the widow and heirs of the father of the defendant is not color of title, so far as the 40 acres in controversy is concerned, unless the jury believes from the evidence that the defendant's father has had actual possession of the same.

Beasley & Wright, of Fayette, for appellant.

London & Fitts, of Birmingham, for appellee.

McCLELLAN J.

Statutory ejectment, by appellee against appellant. The tract sued for contains 40 acres, described by government subcall of that area. The plaintiff's assertion of right to the land is rested solely upon adverse possession, through the right of her husband (since deceased), without any color of title being shown. Indeed, she testified: "I never had any kind of deed to this land from my sons or from my husband, or from any one else. My husband (deceased) never had any deed that I knew of. I never bought it from any one."

The evidence referring to, or descriptive of, a letter received by plaintiff's husband from one Robinson, who, plaintiff claims and testified, owned the land about 1871, but who was not otherwise shown to have any title thereto, does not tend in any degree, to show that the husband ever had any color of title to the land in question. Color of title is a writing which in appearance purports to transmit title, or the right of possession, but which in reality does not. 2 Ency.L. & P. pp. 503-506; Clements v. Hays, 76 Ala. 280; Henry v. Brown, 143 Ala. 446, 39 So. 325.

In such state of the right asserted, the lead to a recovery is restricted to the area actually occupied by the adverse claimant, or those through whom he claims. Black v. Tenn. Co., 93 Ala. 109, 9 So. 537, among others. When the recovery is thus restricted (unaided by a bona fide claim under color of title, inheritance, or purchase), it is essential that the evidence afford data from which the actual possession of a definite, particular area may be ascertained. It cannot be left to speculation or conjecture. McDaniel v. Tenn. Co., 153 Ala. 493, 45 So. 159; Chastang v. Chastang, 141 Ala. 451, 459, 37 So. 799, 109 Am.St.Rep. 45.

The evidence here has been carefully examined with reference to this principle, and the conclusion it requires cannot be distinguished, in substance, from that prevailing, on a very similar state of fact, in McDaniel v. Tenn. Co., supra. There are indicia of actual possession of a part or parts of the 40, but there is an absence of evidence from which the jury could have found the possessio pedis of a definite, particular piece or area within that sued for. A very small part of the 40 was cleared. The other was wood land. The occupancy about the spring may have been of "3 acres" inclosed, but the evidence does not indicate, in any fashion, the particular form of this fractional (of the 40) area, or with certainty where it lay with reference to the other part of the 40. To undertake to lay the line of this "3 acres" by the evidence would be wholly vain. The cutting of firewood, etc., from the 40 is not shown to have substantially covered, in the operations, the entire 40. When it is considered that the husband of plaintiff owned six other 40's, some of which attinged this one in question on at least two sides, and that there was extreme uncertainty as to the knowledge of plaintiff and of her witnesses of the exact lines bounding the 40 in question, it is clear the evidence is insufficient to afford any basis for a particular finding of the definite area actually occupied (if so) by the plaintiff or by those through whom she would trace her right. On this account the defendant was entitled to the affirmative charge requested by him.

If plaintiff's husband had acquired title to the 40, or any definite part of it, by adverse possession previous to his demise, the plaintiff, as his widow, would be entitled to maintain ejectment for such lands, provided they were so related to the place of his last residence as to make them the subject of the widow's quarantine right. Clancy v. Stephens, 92 Ala. 577, 9 So. 522, 524; Callahan v. Nelson, 128 Ala. 671, 29 So. 535; Hays v. Lemoine, 156 Ala. 465, 47 So. 97; 18 Cyc. 378. According to the undisputed evidence admitted on the trial, the 40 in question was entered, in 1858, by one Jett Traweek; that John Bowles, the father of the defendant, bought the 40 from Traweek in 1860; that Jett Traweek made a deed to John Bowles to said 40, which his widow (Frances C. Bowles) had seen; that this deed was acknowledged before Berry, a justice of the peace; that said deed, which was not recorded, was destroyed about 1880, when John Bowles' home burned; that Berry died some years since; that Frances C. Bowles is the mother of the defendant, and that defendant and Mary J. Berry, J.M. Bowles, Martha C. Harkey, Jeremiah S. Bowles, and Malisa E. Woods were all the children born to Frances C. and John Bowles. It was further shown, without dispute, that John Bowles went into possession in 1860 of the 40 under this deed from Traweek. The defendant offered in evidence a deed to defendant, describing the 40 in controversy, purporting to have been executed November 20, 1893, by the widow of John Bowles (Frances C.) and the several children, brothers and sisters of defendant, above named. On the theory that this instrument was without acknowledgment by any of its signors except Frances C., the plaintiff taking the objection, the "court allowed the introduction of said deed as evidence of color of title merely, and not as conveying the legal title." The acknowledgment, which appears to immediately follow the signature on the instrument, is in the following words: "The State of Alabama, Fayette County, I, Henry Brasher, a Justice of the Peace, hereby certify that Frances C. Bowles her heirs whose names is signed to the foregoing conveyance, and who is known to me acknowledged before me this day, that being informed of the contents of this conveyance they executed the same voluntarily on the day the same bears date. Given under my hand, this 20 day of November, 1893. Henry Brasher (J.P.)."

The names of those purporting to be grantors are not set out in the body of the instrument. The...