C.W. Zimmerman Mfg. Co. v. Dunn

• Decision Date: 11 November 1909
• Citation: 163 Ala. 272,50 So. 906
• Parties: C. W. ZIMMERMAN MFG. CO. v. DUNN ET AL.
• Court: Alabama Supreme Court

50 So. 906

163 Ala. 272

C. W. ZIMMERMAN MFG. CO. v. DUNN ET AL.

Supreme Court of Alabama

November 11, 1909

Appeal from Circuit Court, Clarke County; Thomas W. Davis, Special Judge.

Action by William D. Dunn and others against the C. W. Zimmerman Manufacturing Company. From a judgment for plaintiffs defendant appeals. Reversed and remanded.

See 151 Ala. 435, 44 So. 533.

Stevens & Lyons, Wilson & Aldridge, and R. W. Stoutz, for appellant.

A. L McLeod, for appellees.

DOWDELL C.J.

The complaint as originally filed contained a single count in trover, in code form, for the conversion of a specified amount of lumber. It was subsequently amended by adding a second count, in code form, for the conversion of a certain number of pine logs. The general issue was pleaded, and on this plea the case was tried.

It has been firmly settled in this court that in the action of trover there must be a concurrence of the right of property general or special, and of possession, or the immediate right of possession, in the plaintiff at the time of the conversion. Booker et al. v. Jones, Adm'r, 55 Ala. 266-275; Rees v. Coats, 65 Ala. 256; Beall v. Folmar, Sons & Co., 122 Ala. 414-418, 26 So. 1; Moore et al. v. Walker, 124 Ala. 199, 26 So. 984; Johnson v. Wilson & Co., 137 Ala. 468, 34 So. 392 97 Am. St. Rep. 52; Stafsky v. Southern Railway Co., 143 Ala. 272, 39 So. 132; 1 Chit. on Pl. 148-151. In the case before us the rights of property and of possession at the time of the alleged conversion were sought to be proven by showing title to and possession of the land from which the pine logs were cut, and only in this way. Along this line the plaintiffs were permitted, against the objection of the defendant, to introduce in evidence the copy of a tax deed to two of the plaintiffs and a third person, as color of title under which the plaintiffs claimed to have entered into possession of the land. The original tax deed, though void as a muniment of title, would have been admissible as color of title in connection with evidence of actual possession--not as evidence of possession in itself, but as explanatory of the bona fides of claim of ownership and the extent of the possession. The copy, however, was inadmissible without a proper predicate accounting for the absence of the original. No sufficient predicate was here shown. There were three grantees named in the tax deed, either one of whom was as much the rightful and lawful custodian of the deed as the other. Evidence by one of the grantees that he had once had possession of the original, and had searched for it, but could not find it, without proof that it was not in the custody of one of the other two grantees, was insufficient as a predicate for the introduction of secondary evidence, and it was error to admit the copy in the present case on the showing that was made.

There was no attempt to show paper title to the land, such as would draw to it possession, but actual possession with claim of ownership. The only evidence along this line was that of the plaintiff, Dunn, who testified on his direct examination "that he and his coplaintiffs had been in possession of the lands in controversy continuously since 1890, and that they went into possession under tax deeds afterwards introduced in evidence." On his cross-examination this witness testified "that the possession of the plaintiffs consisted solely in the...