Cox v. Broderick

Decision Date11 January 1923
Docket Number6 Div. 696.
Citation95 So. 186,208 Ala. 690
PartiesCOX v. BRODERICK.
CourtAlabama Supreme Court

Rehearing Denied Feb. 1, 1923.

Appeal from Circuit Court, Jefferson County; J. Q. Smith, Judge.

Ejectment by Edith Broderick against Sarah E. Cox. Judgment for plaintiff, and defendant appeals. Affirmed.

Harsh Harsh & Harsh, of Birmingham, for appellant.

Gibson & Davis, of Birmingham, for appellee.

MILLER J.

This is an action of ejectment by Edith Broderick, the appellee against Sarah E. Cox, appellant, for a strip of land, in the shape of a right-angle triangle, with base 2 3/10 feet on an alley and apex in north line of Florentine avenue, 50 feet west of northwest corner of that avenue and Fifty-First street. It is on the west side of, and a part of, a lot which fronts 50 feet on Florentine avenue and 150 feet on Fifty-First street and 50 feet on the alley, in Woodlawn Ala. The jury returned a verdict in favor of the plaintiff judgment was rendered thereon by the court, and this appeal is prosecuted by the defendant from that judgment.

There were two counts in the complaint. The defendant pleaded not guilty to them with leave to introduce in evidence any matter that would be admissible in defense. The general affirmative charge, with hypothesis, in writing, was requested by the defendant generally and as to each count separately, and each was refused by the court. These three written charges refused by the court are assigned as errors.

The plaintiff purchased this lot 50 feet by 150 feet, which included the triangle sued for, from Sadie L. Smith and T. L. Smith, on September 6, 1913, which property was conveyed to her by warranty deed for a recited cash consideration of $1,200. This deed was duly signed and acknowledged by the grantors, and was recorded on December 31, 1913, in the probate office of Jefferson county, the county in which the lot is located.

The evidence is clear and undisputed that the defendant owned and has been in possession of, for about 30 years, the lot adjacent to, and immediately west of, this lot of 50 feet by 150 feet, described in plaintiff's deed. This lot claimed by plaintiff belonged to, and was in possession of, a Mrs. Janett Mauchline until she sold it to Sadie L. Smith some time between 1909 and 1913, except the defendant prior to November 4, 1909, had inclosed by a fence, in her adjacent lot and yard, a part of the west side of this lot of Mrs. Mauchline. On November 4, 1909, the defendant, for valuable consideration, executed and delivered to Janett Mauchline the following written instrument:

"Birmingham, State of Alabama, Jefferson County:
"For and in consideration of a conveyance to me this day by Janett Mauchline, I hereby agree to move the fence now on the east side of my property occupied as a home to a line parallel with Fifty-First street and fifty feet west of said street without cost to Mrs. Janett Mauchline.
[Signed] Sarah E. Cox.
"November 4th, 1909.
"Witness: J. W. Hood." The proof showed she intended thereby to relinquish any claim to, and any possession of, the said 50 feet by 150 feet lot of Mrs. Janett Mauchline, on account of a part of it having been inclosed by fence with her adjoining lot. This gave Mrs. Janett Mauchline possession on November 4, 1909, of the entire lot of 50 by 150 feet, which includes the triangle in this suit.

There is evidence from which the jury could reasonably infer that Mrs. Janett Mauchline was in possession of this entire lot, including the triangle in suit, on November 4, 1909, when it was surrendered to her by the defendant, and that the plaintiff's grantors, the Smiths, secured the lot of 50 by 150 feet from Mrs. Mauchline. The plaintiff purchased it from the Smiths, as evidenced by the deed made by them to her. The evidence made out a prima facie case and right to recover by the plaintiff, and shifted the burden of proof onto the defendant. The evidence tended to connect the title of the plaintiff back to Mrs. Janett Mauchline, a grantor, who was in possession until the defendant entered possession again of this triangular part of it, and if this evidence was believed by the jury it would entitle plaintiff to recover the lot sued for. This was required of plaintiff to make out a prima facie case, which burden she met by showing title to the lot in her and connecting it to some grantor in possession. Florence Bldg. & Inv. Co. v. Schall, 107 Ala. 531, 18 So. 108; Stewart v. Ransom, 200 Ala. 304, headnote 2, 76 So. 70.

The defendant claims title by adverse possession to the triangular lot in question. The evidence tends to show that, after the defendant executed the instrument to Mrs. Mauchline on November 4, 1909, she intended to and did surrender all right to and possession of the entire lot of 50 by 150 feet to her; that afterwards she and Mrs. Mauchline had the lot surveyed and marked off, and the lines as surveyed were agreed on by them, and defendant, in December, 1909, erected the fence on this line, and it has remained there ever since; and this fence inclosed with her other fence the adjacent lot owned by her, and included in this inclosure of defendant was this triangular part sued for of this lot of Mrs. Mauchline; and that she has held possession of it, in this inclosure, since some time in December, 1909.

Section 2830 is new to the Code of 1907. It went into effect in 1908 and is applicable to some of the evidence in this case, as defendant does not claim title by adverse possession to this...

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15 cases
  • Earnest v. Fite
    • United States
    • Alabama Supreme Court
    • May 29, 1924
    ... ... devise from a predecessor in the title who was in possession ... of the land ... If the ... claimant does not bring his possession within one of these ... three specifications, his claim of title by adverse ... possession must fail. Cox v. Broderick, 208 Ala ... 690, 95 So. 186; McCraw v. Lindsey, 209 Ala. 214, 95 ... So. 898; Kilpatrick v. Trotter, 185 Ala. 546, 64 So ... 589; Wright v. L. & N. R. R. Co., 203 Ala. 118, 121, ... 82 So. 132; Childs v. Floyd, 188 Ala. 556, 66 So ... 473; s. c., 194 Ala. 651, 70 So. 121. See, also, ... ...
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    • Alabama Supreme Court
    • October 11, 1928
    ... ... one-seventh interest in the SE 1/4 of SE 1/4, section 20, ... township 2, range 24, and 10 acres in the northeast corner of ... the NE 1/4 of NE 1/4 of section 29, township 2, range 24, all ... in Geneva county, Alabama." McCraw v. Lindsey, 209 Ala ... 214, 95 So. 898; Cox v. Broderick, 208 Ala. 690, 95 ... We have ... carefully examined the evidence under the pleading, and find ... that the decree of the circuit court is without error, and is ... affirmed ... Affirmed ... ANDERSON, ... C.J., and SAYRE and BROWN, ... ...
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    ... ... 6069, or its predecessors, because by its express terms it ... does not apply "to cases involving a question as to ... boundaries between coterminous owners." Copeland v ... Warren, 214 Ala. 150, 107 So. 94; Byars v ... Howell, 209 Ala. 191, 95 So. 871; Cox v ... Broderick, 208 Ala. 690, 95 So. 186, 187; Hopkins v ... Duggar, 204 Ala. 626, 87 So. 103 ... The ... doctrine applicable here can best be stated by quotation from ... the opinion in Hess v. Rudder, 117 Ala. 525, 528, 23 ... So. 136, 67 Am. St. Rep. 182, where it was observed: ... ...
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    • United States
    • Alabama Supreme Court
    • May 10, 1951
    ...Title 7, Code of 1940, in their effort to show adverse possession from 1937. Lowrey, v. Mines, 253 Ala. 556, 45 So.2d 703; Cox v. Broderick, 208 Ala. 690, 95 So. 186. The suit originally was for about 3 1/2 acres. There was a disclaimer by the defendants as to the property sued for except a......
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