Bundy v. Echols

• Decision Date: 11 April 1940
• Docket Number: 6 Div. 566.
• Citation: 195 So. 439,239 Ala. 421
• Parties: BUNDY v. ECHOLS.
• Court: Alabama Supreme Court

195 So. 439

239 Ala. 421

BUNDY v. ECHOLS.

6 Div. 566.

Supreme Court of Alabama

April 11, 1940

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action of ejectment by Edith Howard Echols against R. C. Bundy. From a judgment for plaintiff, defendant appeals.

Affirmed.

Richard Hail Brown, of Birmingham, for appellant.

Wilkinson & Wilkinson, of Birmingham, for appellee.

ANDERSON Chief Justice.

Action of ejectment by appellee against appellant for "a strip of land three feet wide, parallel to and along the south side of and adjoining Lot 35 in Block 13 G, according to the plat of Walker Land Company of East Woodlawn, according to the plat of said Block 13 G as laid off into lots by Frazier &amp Ebersole, etc." as set out in Amended Count A, being the one under which the case was tried. The plaintiff showed a record title to Lot 35 and her husband and agent, who purchased it for her, was evidently under the impression that said three foot strip was a part of said Lot 35. But the complaint does not proceed upon the theory that it is a part of Lot 35, and, unless it is, the plaintiff's deed would not convey the title or even operate as color of title to said strip.

The case was tried by the judge without a jury who rendered a judgment for the plaintiff. Therefore, eliminating the question of a complete title not shown by either party and considering, without deciding, that the plaintiff did not come within the statutory requirements of establishing a title by adverse possession, there was an abundance of evidence to show her actual possession of the strip in question for a number of years prior to the possession of the defendant who does not appear to have acquired possession except as a trespasser and, this being so, the trial court must be justified in rendering judgment for the plaintiff.

We, of course, recognize the general rule that ordinarily in an action of ejectment the plaintiff must recover upon the strength of his own title and not the weakness of that of the defendant, but there is another well recognized exception or rule that when neither party establishes title, the plaintiff may recover under an actual, previous possession as against a mere trespasser on the land or one claiming only under a later possession. McCreary et al. v. Jackson Lumber Co., 148 Ala. 247, 41 So. 822; Vidmer v. Lloyd, 193 Ala. 386, 69 So. 480, Ann.Cas.1917A, 576; Louisville & N. R. R. Co. v. Philyaw...