Davis v. Caldwell

• Decision Date: 07 June 1895
• Citation: 107 Ala. 526,18 So. 103
• Parties: DAVIS v. CALDWELL.
• Court: Alabama Supreme Court

18 So. 103

107 Ala. 526

DAVIS v. CALDWELL.

Supreme Court of Alabama

June 7, 1895

Appeal from circuit court, Jackson county; H. C. Speake, Judge.

Action of ejectment by Hamlin Caldwell against Tilman P. Davis. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

After the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the following written charges: (1) "If Mr. Boyd's holding was intended to be to the true section line, and he did not claim, or intend to claim, any land in section four, and the jury are satisfied from the evidence that the land claimed is in section four, they should find for the plaintiff." (2) "If the line established was supposed to be the section line, and if each held under the honest belief that the line was the true section line, and it now appears that such line was not the true line, then there was no adverse possession of one against the other." The defendant separately excepted to the giving of each of these charges and also separately excepted to the court's refusal to give the following written charge requested by him: "If the jury believe the evidence, they should find the issues in favor of the defendant." There were verdict and judgment for the plaintiff, and the defendant moved the court to set aside said verdict and judgment, and grant a new trial, on the grounds (1) that the verdict was unsupported by the evidence; (2) the verdict was contrary to the evidence; and (3) the verdict was contrary to the charge of the court. The court overruled this motion, and the defendant duly excepted. Defendant assigns as error the giving of the charges requested by the plaintiff, the refusal to give the charge asked by the defendant, and the refusal to grant the motion for a new trial.

Martin & Bouldin, for appellant.

J. E Brown, for appellee.

COLEMAN J.

Hamlin Caldwell sued in ejectment to recover a small strip of land lying within and along the boundary of fractional section 4 and adjacent to the line dividing it from fractional section 5. The evidence shows that the land sued for lay within section 4. The defendant entered into possession, under a purchase and deed of conveyance from Jesse Boyd, about five years before the bringing of the suit. Boyd's deed conveyed only lands in section 5, and none in section 4. Caldwell and Boyd had been coterminous landowners for more than 20 years, the former claiming possession and ownership of the lands in fractional section 4, and Boyd in fractional section 5. The defendant relied upon the statute of limitations of 10 years as a bar to a recovery, and to sustain the defense offered evidence for the purpose of showing that Boyd, his vendor, had been in the adverse possession of the land in controversy for more than 10 years. According to the government survey and the description of the lands in the deed of conveyance to him, the defendant acquired no right or interest in the land. The question of contention is whether, by agreement or otherwise, the dividing line between sections 4 and 5, fixed by government survey, as between Caldwell and Boyd, had been changed so that the strip would pass by a conveyance of section 5. The evidence shows that neither Caldwell nor Boyd had ever had the line between them surveyed, nor had there been any controversy or dispute in regard to the line. The one cleared and cultivated up to a hedge or fence row on his side, and the other to the same row on the other side, and the land in controversy was on that side of the hedge or row cultivated by Boyd. The...