Doe v. Beck

• Decision Date: 13 January 1896
• Citation: 19 So. 802,108 Ala. 71
• Parties: DOE EX DEM. ALABAMA STATE LAND CO. v. BECK. [1]
• Court: Alabama Supreme Court

19 So. 802

108 Ala. 71

DOE EX DEM. ALABAMA STATE LAND CO. v. BECK. ^[1]

Supreme Court of Alabama

January 13, 1896

Appeal from circuit court, Cherokee county; J. A. Bilbro, Judge.

Action of ejectment by the Alabama State Land Company against Mike Beck. Judgment for defendant, and plaintiff appeals. Affirmed.

This was a common-law action of ejectment, brought by the appellant against the appellee for the recovery of the S. 1/2 of the N.E. 1/4 and the N. 1/2 of the S.E. 1/4 of section 27 township 9, range 8, in Cherokee county, Ala. The declaration and notice were filed December 14, 1894, and a copy was served on the defendant, Mike Beck, on December 22, 1894. No pleas appear in the record, but from the bill of exceptions it is seen that the trial was had upon issue joined upon the plea of not guilty and adverse possession. The evidence for the plaintiff tended to show that it had acquired title to the lands sued for under and by virtue of a grant from the general government of the United States of odd sections of land along the line of the Alabama & Chattanooga Railroad (Act Cong. approved June 3, 1856), and that said title accrued to the plaintiff on February 8, 1877. The evidence for the defendant tended to show adverse possession for a period of two years before suit was brought, the defendant being in actual possession of only a part of the land sued for, but claimed by it under the following written instrument, which was executed by Franklin Hale: "The State of Alabama, Cherokee County. Know all men by these presents that in consideration of the sum of $75 (seventy-five dollars), to me in hand paid, the receipt whereof is hereby acknowledged, I do grant, bargain, sell and convey to M. K. Beck all of my interest and improvement in the following described real estate, to wit: The N. 1/2 of the S.E. 1/4, and N.E. 1/4 of S.W. 1/4, and S.E. 1/4 of N.W 1/4, and S.W. 1/4 of N.E. 1/4, of sec. 27, T. 9, R. 8 E., in Cherokee county, Alabama, containing 200 acres; to have and to hold to the said M. K. Beck, his heirs and assigns forever. Witness may hand and seal this December 22, 1872." The other tendencies of the evidence are sufficiently stated in the opinion. Upon the cross-examination of the defendant he was asked the following question: "You gave in your property again under oath in 1892." The defendant objected to this question, on the grounds that it called for irrelevant testimony, was illegal and immaterial, that there was better evidence of the matter inquired about, and that it "did not appear how or in what way the question was related to any matter in issue." The court sustained this objection, and the plaintiff duly excepted. Upon the examination of one of the witnesses he was asked by the plaintiff's counsel the following questions: "What do you understand by pre-emption lands? What is generally understood by pre-emption lands?" To each of these questions the defendant separately objected, on the ground that each called for immaterial testimony, was illegal, and called for the opinion of the witness about a matter in which his opinion was incompetent evidence. The court sustained the objection to each of these questions, and to each of such rulings the plaintiff separately excepted. The other rulings upon the evidence are sufficiently stated in the opinion. The court, among other things, instructed the jury "that the instrument from Frank Hale is good as color of title." To the giving of this instruction the plaintiff excepted, and also separately excepted to the court's giving, at the request of the defendant, each of the following written charges: (5) "The court charges the jury that if Hale held under a pre-emption claim, and Beck bought and went into possession under him, and claimed under such pre-emption claim for ten years before the bringing of this suit, openly, notoriously, and continuously, then plaintiff cannot recover the lands claimed." (6) "The court charges the jury that if Beck held open, notorious, continuous, adverse possession of the lands sued for against plaintiff in this suit for ten years before the bringing of this suit, the plaintiff cannot recover, although he may believe the legal title to have been, or may have been, in the government." (7) "The court charges the jury that if Beck has proven to the reasonable satisfaction of the jury that he had been in the open, notorious, and continuous adverse possession of the lands sued for for ten years before the bringing of this suit, the jury will find for the defendant." There were verdict and judgment of the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court upon the evidence and in giving the charges copied above to the jury.

Smith & Lowe, for appellant.

Denson & Burnett, for appellee.

McCLELLAN J.

According to a tendency of the evidence in this case, the defendant's possession of the land sued for upon which he relied as vesting the title in himself by an adverse holding of more than 10 years' duration "was not adverse but was in recognition of a supposed title in the government or in the railroad; that defendant, while in possession of said land, spoke of its being government or railroad land"; "that the defendant purchased a pre-emption claim from Franklin Hale about 20 years ago, and that he claimed during the time of his occupation of the lands only a pre-emption right and his improvements upon said land, and that Franklin Hale claimed that he had pre-empted said lands, and that he occupied and claimed said lands because he had pre-empted them, and that while defendant was residing on said land he often spoke of it as pre-empted land." A pre-emptor is one who, by settlement upon and improvement of public land, acquires a right to purchase the particular land to the extent of 160 acres in preference to others by paying the minimum price thereof, provided it is or when it becomes open to sale. By their pre-emption laws the United States do not enter into any "contract with the settler or incur any obligation that the land occupied by him shall ever be put up for sale." Rev. St. U.S. § 2259; 19 Am. & Eng. Enc. Law, p. 313; Hutchings v. Low, 15 Wall. 77. The settler's right is valid, in the sense of being enforceable when the conditions of...