Calvert v. Bynum, 6 Div. 54

CourtSupreme Court of Alabama
Writing for the CourtLAWSON
Citation50 So.2d 731,255 Ala. 172
Docket Number6 Div. 54
Decision Date15 February 1951
PartiesCALVERT v. BYNUM.

Page 731

50 So.2d 731
255 Ala. 172
CALVERT

v.
BYNUM.
6 Div. 54.
Supreme Court of Alabama.
Feb. 15, 1951.

[255 Ala. 173]

Page 733

Nash & Nash, Oneonta, for appellant.

[255 Ala. 174] R. G. Kelton, Oneonta, for appellee.

Page 732

The following charges were given at defendant's request:

'5. I charge you that in actions of this nature the defendant within pleading time may file his suggestion in writing that the dispute arises over a disputed boundary line, and thereupon the plaintiff shall take issue, or shall reply in writing in which reply he shall set forth his contention as to the location of the true boundary line, and I further charge you that the defendant in this case has set forth what he claims to be the true boundary line and the plaintiff has taken issue thereon, and if you find that the true boundary line is as the defendant has described and defined it in his suggestion, then your verdict must be for the defendant, J. L. Bynum.

'6. I charge you that if you are satisfied from the evidence that the land lines involved in this action were pointed out to the defendant when or shortly after purchase and that the defendant went into possession of said lands and the plaintiff or his predecessors in title agreed to and recognized such line as being the true line between the two tracts of land, and the defendant held such line continuously, openly, notoriously, claiming to own the same, adversely for a period of ten years, constitutes

Page 733

and is a good defense to this action, and you would be authorized to find your verdict for the defendant, J. L. Bynum.

'7. I charge you that in order for the plaintiff to recover in this case he must show title to the lands sued for and the right to possession thereof at the commencement of the action and up to the trial and I further charge you that if you are reasonably satisfied from the evidence that the defendant has had the actual, open, notorious, exclusive and continuous possession of said lands, under a color of title for a period of ten years before the commencement of this suit, your verdict should be for the defendant.'

LAWSON, Justice.

This is a statutory action in the nature of ejectment by J. H. Calvert against J. L. Bynum.

The suit was to recover possession of land described in the complaint as follows: 'Lots Numbers one (1), two (2), three (3), four (4), and five (5) in Block Number six (6) and also that part of Block six (6) marked on the Map of Pinehurst as 'Reserved' according to map and survey of Pinehurst Addition to Town of Oneonta, Alabama.'

Defendant, pursuant to § 942, Title 7, Code 1940, suggested that the suit arose over a disputed boundary line, and described the location of the line claimed by him as follows: "Beginning at a point 281.5 feet north of the Southeast corner of the Southeast fourth of the Southeast quarter of Section Thirty one (31), Township Twelve (12), Range 2 Two East, Running thence South 38~ West, 160 feet to a corner; thence North 84~30' West 150 feet to a stake; thence South 62~ West 210 feet to a stake' such description being the line between the plaintiff and the defendant as coterminous land-owners, and the same being as surveyed and platted by H. W. Brown, County Surveyor of Blount County, Alabama, on the 5th day of December, 1934, and being of record in Deed Record Vol. 87, page 405, record of Deeds in the Probate Office of Blount County, Alabama.'

It is apparent that defendant's suggestion does not involve the title, but the boundary line of the parties. The several grounds of demurrer to defendant's plea or suggestion were properly overruled. Cox v. Cook, 245 Ala. 668, 18 So.2d 406. We have...

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17 practice notes
  • Mobile City Lines, Inc. v. Proctor, 1 Div. 781
    • United States
    • Supreme Court of Alabama
    • 25 Mayo 1961
    ...805, but this court has held that neither the giving nor the refusal of such a charge will, as a rule, work a reversal. Calvert v. Bynum, 255 Ala. 172, 50 So.2d It appears that Charge 12 is subject to the further objection that under it the jury were permitted to award damages for pain and ......
  • Godsey v. Anglin, 6 Div. 389
    • United States
    • Supreme Court of Alabama
    • 13 Mayo 1954
    ...between [261 Ala. 22] two tracts can be established so that the government survey no longer will be the location of it. Calvert v. Bynum, 255 Ala. 172, 50 So.2d 731; Milstead v. Devine, 254 Ala. 442, 48 So.2d 530; Guy v. Lancaster, 250 Ala. 226, 34 So.2d 10; Denton v. Corr, 250 Ala. 149, 33......
  • Proctor Agency, Inc. v. Anderson
    • United States
    • Supreme Court of Alabama
    • 10 Marzo 1978
    ...instructions given to the jury regarding the issues presented. Jones v. Blackman, 284 Ala. 684, 228 So.2d 1 (1969); Calvert v. Bynum, 255 Ala. 172, 50 So.2d 731 (1951); Western Union Telegraph Co. v. Smith, 189 Ala. 534, 66 So. 578 (1914). Given this principle, it cannot be said that the re......
  • Grayco Resources, Inc. v. Poole
    • United States
    • Supreme Court of Alabama
    • 3 Octubre 1986
    ...Automobile Ins. Co. v. Dodd, 276 Ala. 410, 162 So.2d 621 (1964), Jones v. Blackman, 284 Ala. 684, 228 So.2d 1 (1969), Calvert v. Bynum, 255 Ala. 172, 50 So.2d 731 Accordingly, we hold that the trial court erred in failing to give certain of Plaintiffs' requested jury charges as noted. The j......
  • Request a trial to view additional results
17 cases
  • Mobile City Lines, Inc. v. Proctor, 1 Div. 781
    • United States
    • Supreme Court of Alabama
    • 25 Mayo 1961
    ...805, but this court has held that neither the giving nor the refusal of such a charge will, as a rule, work a reversal. Calvert v. Bynum, 255 Ala. 172, 50 So.2d It appears that Charge 12 is subject to the further objection that under it the jury were permitted to award damages for pain and ......
  • Godsey v. Anglin, 6 Div. 389
    • United States
    • Supreme Court of Alabama
    • 13 Mayo 1954
    ...between [261 Ala. 22] two tracts can be established so that the government survey no longer will be the location of it. Calvert v. Bynum, 255 Ala. 172, 50 So.2d 731; Milstead v. Devine, 254 Ala. 442, 48 So.2d 530; Guy v. Lancaster, 250 Ala. 226, 34 So.2d 10; Denton v. Corr, 250 Ala. 149, 33......
  • Proctor Agency, Inc. v. Anderson
    • United States
    • Supreme Court of Alabama
    • 10 Marzo 1978
    ...instructions given to the jury regarding the issues presented. Jones v. Blackman, 284 Ala. 684, 228 So.2d 1 (1969); Calvert v. Bynum, 255 Ala. 172, 50 So.2d 731 (1951); Western Union Telegraph Co. v. Smith, 189 Ala. 534, 66 So. 578 (1914). Given this principle, it cannot be said that the re......
  • Grayco Resources, Inc. v. Poole
    • United States
    • Supreme Court of Alabama
    • 3 Octubre 1986
    ...Automobile Ins. Co. v. Dodd, 276 Ala. 410, 162 So.2d 621 (1964), Jones v. Blackman, 284 Ala. 684, 228 So.2d 1 (1969), Calvert v. Bynum, 255 Ala. 172, 50 So.2d 731 Accordingly, we hold that the trial court erred in failing to give certain of Plaintiffs' requested jury charges as noted. The j......
  • Request a trial to view additional results

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