Dodge v. Irvington Land Co.

• Decision Date: 03 July 1908
• Citation: 158 Ala. 91,48 So. 383
• Parties: DODGE v. IRVINGTON LAND CO.
• Court: Alabama Supreme Court

48 So. 383

158 Ala. 91

DODGE v. IRVINGTON LAND CO.

Supreme Court of Alabama

July 3, 1908

Rehearing Denied Jan. 14, 1909.

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Statutory ejectment by the Irvington Land Company against R. M. Dodge. Judgment for plaintiff. Defendant appeals. Affirmed.

Denson and McClellan, JJ., dissenting.

Gunter & Gunter, for appellant.

Erwin &amp McAleer, for appellee.

TYSON C.J.

This case was tried by the judge without the intervention of a jury. The determination of all issues of fact was therefore submitted to him, and his finding upon those issues is entitled to the same consideration as that of a verdict of a jury. Under the testimony it was open for the court to find that plaintiff was in the actual peaceable possession of the lands in controversy at the time the defendant entered thereon; no abandonment of the possession of them being shown. Brand v. U.S. Car Co., 128 Ala. 579, 30 So 60; Goodson v. Brothers, 111 Ala. 589, 20 So. 443. So, then, the single question presented by this record is whether the trial judge was authorized to render judgment for plaintiff, upon proof of prior actual possession under color of title and proof of prior actual possession by its grantor, against the defendant, who showed no title in himself, nor superior outstanding title in a third person, but whose entry and occupancy was under color of title.

We do not regard the question as an open one in this jurisdiction. The plaintiff's right to recover is founded upon the principle that "possession of lands is prima facie evidence of title, and is sufficient evidence against all who do not show a prior possession or a better title." Mickle v. Montgomery, 111 Ala. 421, 20 So. 441; Adams v. Frampton, 9 Ala. 124; McCall v. Prior, 17 Ala. 533; Cox v. Davis, Id. 714, 52 Am. Dec. 199; Russell v. Irwin, Adm'r, 38 Ala. 44; Anderson v. Melear, 56 Ala. 623; Mills v. Clayton, 73 Ala. 359; Strange v. King, 84 Ala. 212, 4 So. 600; Stephenson v. Reeves, 92 Ala. 582, 8 So. 695; Bradshaw v. Emory, 65 Ala. 208; Crosby v. Pridgen, 76 Ala. 387; Wilson v. Glenn, 68 Ala. 383; Steele v. Brown, 70 Ala. 235, 237; Reddick v. Long, 124 Ala. 260, 27 So. 402; Campbell v. Bates, 143 Ala. 345, 39 So. 144. This principle in no wise contravenes the doctrine that the plaintiff in ejectment must recover, if at all, upon the strength of his own title, and not on the mere weakness of that of his adversary. It simply accords to his possession, as evidence, a presumption of title, which must be rebutted or overcome by his adversary; and this his adversary may do, if not a bare trespasser and he has not the legal title, by showing his antecedent actual possession, or an outstanding title in a third party, or that plaintiff's title was subordinate or permissive, or that the action is barred by the statute of limitations.

If this were not the rule, the plaintiff in every case--except, perhaps, where the contesting parties derive their respective claims to title from a common source, or where no element of estoppel exists--in order to recover, would be forced to trace his title to the government, or to establish an adverse possession for a sufficient length of time to ripen into a title, as against an adversary who has no shadow of title, except the color of title under which he wrongfully entered and dispossessed the plaintiff. Such a rule would strike down the doctrine of presumptive title, generally indulged, founded upon proof of possession of the property in controversy, be it real or personal. And surely the fact that title to lands in this state was originally held by the United States government will not authorize the striking down of this principle, to the end of indulging the presumption, in favor of one having no title, that the outstanding title is still in the government. Why not presume, in support of plaintiff's prima facie rightful possession, that it acquired the government's title, rather than, in favor of a trespasser, that the government has never parted with it? Indeed, that such a presumption will be indulged in favor of the plaintiff, rather than the one, invoked by the defendant, that the title is still outstanding in the government, has been too long settled to be now debatable. Smoot v. Lecatt, 1 Stew. 590, 600. While this principle has not, perhaps, been announced in this language, the many decisions of this court, permitting a recovery by a plaintiff upon proof of prior actual possession, where no better title was shown in either party (conceding that in this action the question of legal title is always involved), cannot be sustained upon any other theory. This presumption is, of course, a rebuttable one, and may be overcome by proof of title in the government, or in some person other than the plaintiff. If this were not true, then there would be no room for the application of the principle of presumptive title predicated upon actual possession.

If the title is still outstanding in the government, as is insisted, proof of that fact is not difficult. But, however difficult of proof it may be, this would not afford a good reason for a departure from the principle so clearly and accurately stated by one of the ablest Chief Justices of this court in this language: "As to an intruder or trespasser, or as to one who does not show a better right, possession of lands, like the possession of personal property, is prima facie evidence of title, and will support ejectment." (Italics supplied.) Dothard v. Denson, 72 Ala. 544. A trespasser under color of title is entitled to no more consideration than any other wrongdoer; and it cannot be regarded a hardship to require of him to acquit himself of the imputation of wrongful entry upon lands in the possession of another, when that occupancy is of such character as to carry with it the presumption of ownership. Indeed, the only distinction recognized by our decisions between the right of defense of a bare, naked trespasser, and that of a trespasser under color of title, is that the former is not permitted to show an outstanding title in a third person in order to defeat the plaintiff's recovery, while the latter is accorded that right of defense, without connecting himself with such outstanding title.

After a careful research we have been unable to find any case in this state which holds to the contrary of the views we have announced. It is true that in Bernheim v. Horton, 103 Ala. 384, 15 So. 823, this language is used: "The general rule is that in ejectment plaintiff must recover on the strength of his legal title, and not on the weakness of his adversary's title. To this general rule there is an exception, that prior possession is sufficient to sustain the action against a mere trespasser; but this exception does not extend as against a person in possession, claiming in his own right under color of title." In support of this proposition the cases of Snedecor v. Freeman, 71 Ala. 140, Guilmartin v. Wood, 76 Ala. 204, Lucy v. Tennessee & Coosa R. R. Co., 92 Ala. 246, 8 So. 806, Stephenson v. Reeves, 92 Ala. 582, 8 So. 695, and Jernigan v. Flowers, 94 Ala. 508, 10 So. 437, are cited. An examination of these cases will show that they assert no more than the proposition laid down by us, and that they do not go to the extent of holding, or even of intimating, the existence of the limitation as asserted in the latter part of the quotation above. Indeed, this limitation upon what is denominated as an exception in the quotation was never before recognized by this court, nor has it ever been since recognized. Besides, if it is not wholly unsound upon principle, it is clearly misleading, and has never been applied by this court as determinative of any of the numerous cases reviewed by it. An entry and dispossession by one who has no more than color of title is just as much a trespass, unless he shows an outstanding title in another, as would be the entry of a bare, naked intruder or trespasser. Furthermore, the doctrine asserted was dictum, and did not control the decision of the case, as will be readily seen by a reading of the opinion.

It has always been our understanding of the law in this jurisdiction that a plaintiff in ejectment makes out a prima facie case, entitling him to recover, upon proof of his possession under a conveyance from a grantor shown to be in possession when the conveyance was executed. When these facts are proven, the burden is then cast upon the defendant to show title in himself or in some third person. Indeed, this seems to be the doctrine very generally accepted by the courts of this country.

In this case the plaintiff was entitled to recover unless its presumptive title was overcome by proof of title in defendant or in some third party. No such proof was offered. Therefore the prima facie case made by plaintiff must prevail. 15 Cyc. pp. 30, 31, 32, and cases collected in note; note to Plume v. Seward, 60 Am. Dec. 601, and cases there cited.

Affirmed.

DOWDELL, SIMPSON, and ANDERSON, JJ., concur.

DENSON J. (dissenting).

I am unable to agree with the majority opinion, and the questions involved being of great importance, from their constant recurrence in litigation respecting land, I think it proper that I should express my dissenting views.

The action is statutory ejectment by the plaintiff (appellee) to recover of the defendant (appellant) two distinct subdivisions of land. The defendant conceded the plaintiff was entitled to recover as to one of the subdivisions, and contested its right of recovery to only one of the subdivisions. It is only to that subdivision, the title to which was contested, this opinion has application. The plaintiff showed no paper title derived from the government nor, first showing that the title had...