Darby v. Jones

• Decision Date: 10 April 1947
• Docket Number: 4 Div. 452.
• Citation: 29 So.2d 879,249 Ala. 104
• Parties: DARBY et al. v. JONES.
• Court: Alabama Supreme Court

29 So.2d 879

249 Ala. 104

DARBY et al. v. JONES.

4 Div. 452.

Supreme Court of Alabama

April 10, 1947

Ralph A. Clark, of Andalusia, for appellants.

Murphy & Cook and E. O. Baldwin, all of Andalusia, for appellee.

GARDNER Chief Justice.

This is a statutory action in ejectment brought by appellants against the appellee for the recovery of lot 15, Block L, of Hart's Division of the town of Opp, Alabama. The trial was had before the court without a jury, upon plea of the general issue and disclaimer as to part of the lot. There was a judgment for the defendant, and the plaintiffs appeal.

It would appear from an examination of the record that defendant was resting largely upon possession for more than twenty years under claim of title, and offered to show color of title, which was excluded. Plaintiffs do not appear to have denied this long possession on defendant's part, but insisted that it was by acquiescence and consent, and that of consequence adverse claim could not be sustained. Lucas v. Scott, 247 Ala. 183, 24 So.2d 540.

The further argument is that the defendant, when a witness, made no categorical denial of such acquiescence, but in view of the sudden termination of the trial before the defendant had evidently completed his testimony, this matter of proof is left in some doubt. And we may add there was testimony of other witnesses tending to show this possession was adverse. However that may be, as we view it, that question is here unimportant.

It is the universal rule in ejectment that plaintiff can recover only on the strength of his own title and not on the weakness of that of his adversary. 19 C.J. 1039; 28 C.J.S., Ejectment § 10, p. 856, where a list of authorities from this State are cited in the note.

Plaintiffs' evidence is to the effect that in February, 1911, a deed was executed by one Huggins to Charlie Blockton, John Morgan and Nick Byrd, as Trustees of the African Methodist Episcopal Zion Church in America, of Opp, Covington County, Alabama and to their associates and successors in office, conveying the lot here sued for. This deed contains the further recital: 'In trust that said premises shall be used kept, maintained, and disposed of as a place of Divine Worship for the use of the ministry and membership of the African Methodist Episcopal Zion Church in America; subject to the discipline, usage, and ministerial appointments of said Church, as from time to time authorized and declared by the General Conference of said Church, and the Annual Conference in whose bounds the said premises are situate.'

Plaintiffs' evidence further tends to show that the aforesaid African Methodist Episcopal Zion Church was not then, and has never been, organized. We find, however, upon a study of the record, that the witness Brady Morgan testified positively that this church was in existence and that services were held on this lot for four or five years; that his father was a member, though witness was not, but he attended frequently. In any event, as an unincorporated society the said church was without capacity to acquire or hold title. Gewin v. Mt. Pilgrim Baptist Church, 166 Ala. 345, 51 So. 947, 139 Am.St.Rep. 41; Stewart v. White, 128 Ala. 202, 30 So. 526, 55 L.R.A. 211; Burke v. Roper, 79 Ala. 138; Street v. Pitts, 238 Ala. 531, 192 So. 258.

The evidence is to the effect that two of the trustees named in the deed above referred to have died and that Nick Byrd is the surviving trustee. As such surviving trustee, in June 1944, Nick Byrd executed a quitclaim deed to C. A. and Carrie Darby, the plaintiffs in this cause. It is upon this deed plaintiffs seek to establish their title. The deed recites the facts as to Charlie Blockton, John Morgan and ...