Byrd v. Bailey

• Decision Date: 15 November 1910
• Citation: 169 Ala. 452,53 So. 773
• Parties: BYRD v. BAILEY ET AL.
• Court: Alabama Supreme Court

53 So. 773

169 Ala. 452

BYRD v. BAILEY ET AL.

Supreme Court of Alabama

November 15, 1910

Appeal from Circuit Court, Monroe County; John T. Lackland, Judge.

Action by M. F. Byrd against Dock Bailey and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Barnett & Bugg, for appellant.

W. B Merrill and H. H. McClelland, for appellees.

SAYRE J.

Statutory action in the nature of ejectment for a strip of land 49 yards wide and lying along the east side of the N.W. 1/4 of the N.W. 1/4 of section 6, township 5, range 7, in Monroe county. The action was brought on March 5, 1909. Plea of the general issue. At the conclusion of the evidence the court gave the general affirmative charge for the defendant.

Plaintiff and defendant Jones--Bailey being in possession as Jones' tenant--were coterminous owners. Plaintiff claimed under a deed from P. M. Byrd, of date December 17, 1898. At the time of plaintiff's purchase, and as well before and since there was a fence which purported to divide the lands of plaintiff on the west and defendant on the east; the strip in controversy lying on defendant's side of the fence and being cultivated by him. In order to make out his case it was necessary for the plaintiff to show a continuous chain of title back to some grantor in possession, to a source of title common to plaintiff and defendant, or to the United States. Plaintiff and those under whom he deraigned title had been in possession of the remainder of the quarter section but there is a clear failure of the evidence to show that either plaintiff or his predecessors in title had ever been in possession of the strip in controversy. In fact, the contrary appears. There was no effort to trace title back to a common source. The effort was to trace title back to the government. But that effort failed in several particulars. It will suffice to mention one.

Plaintiff's title ran back to William Sawyer. Sawyer had bought the entire quarter section at a tax sale. At that time one Brown was in possession of so much of the tract as lay upon plaintiff's side of the fence. Sawyer undertook to make a deed to Brown. No witness attested the execution of the paper. Code 1907, § 3355. But Sawyer, who was a justice of the peace, certified to his own acknowledgment of its execution. It is the settled doctrine of this court that the taking and certification of an acknowledgment is a judicial act. Grider v....