Doe v. Clayton

• Decision Date: 28 February 1887
• Parties: DOE EX DEM. HOOPER v. CLAYTON AND ANOTHER.
• Court: Alabama Supreme Court

2 So. 24

81 Ala. 391

DOE EX DEM. HOOPER v. CLAYTON AND ANOTHER.

Supreme Court of Alabama

February 28, 1887

Appeal from circuit court, Lee county.

Action of ejectment.

This was ejectment by the appellant, Charles M. Hooper, against the appellees, Melissa J. Clayton, widow of A. R. Lyon deceased, and others, tenants in possession, for the recovery of section 12, township 17, range 28, located in Lee county Alabama. The suit was commenced March 17, 1879. The appellees pleaded the general issue, and, among other special pleas the statute of limitations of five years, relating to suits for the recovery of lands sold for taxes.

The evidence on the part of appellees tended to show that, in 1858 or 1859, George D. Hooper was agent of one Columbus Mills, for the purpose of looking after the lands of said Mills, and the section of land in controversy was called to the attention of Hooper by its being known as the "Mills Tract;" that in one of said years Hooper, with some hands, went upon said land, and blazed trees, and made a defined path around said section on the lines thereof; that Hooper at that time had no written evidence of this agency but in 1862 he received from said Mills a written power of attorney, which, among other things, authorized Hooper to occupy, rent, or sell all of the lands of said Mills. This power of attorney bore date May 30, 1862, and was duly proved and admitted in evidence. The evidence further tended to show that, from the time Hooper went upon said land as above stated in 1870, it was all in forest, uninclosed and unimproved; but said Hooper, as agent of said Mills, went repeatedly on said lands, before, during, and after the war and that, during said time down to 1868, he claimed the land as the agent of said Mills, and notified the neighbors of said claim. There was evidence tending to show that appellant, Charles M. Hooper, had frequently, after 1865, been on said land, and, at request of George D. Hooper as agent of Mills, had tried to sell it. Appellant, being introduced as a witness, was asked whether, from the time of G. D. Hooper's entry upon the land in 1858 or 1859, as above stated, and prior to 1869, "it was or was not well and notoriously known in the neighborhood that G. D. Hooper was in possession of the land." The appellees objected to this question as irrelevant and incompetent, the court sustained the objection, and appellant excepted. Appellant was then asked whether, during that period of time, "the possession of G. D. Hooper, as agent of Mills, was or was not open and notorious." The appellees objected to this question on the same grounds, the court sustained the objection, and appellant excepted.

The evidence tended to show that in 1868 or 1869, Geo. D. Hooper, as agent of Mills, executed and delivered to appellant a paper writing, which had been destroyed by fire. The contents were as follows:

"I, Geo. D. Hooper, agent of Dr. Columbus Mills, agree to sell Charles M. Hooper section 12, township 17, range 28, for $300; subject, however, to the approval of Dr. Mills. Should Dr. Mills disapprove of this contract, said C. M. Hooper shall be paid for services in procuring tenants and improving place.

[Signed]

"COLUMBUS MILLS.

"By G. D. HOOPER, his Agent."

After the execution and delivery to him of this contract, the evidence tended to show that appellant took possession of the land in 1870, claiming under said contract, by putting tenants thereon, who made improvements on different parts thereof, and these tenants remained on the land, holding under appellant, till the fall of 1872.

The appellees then offered in evidence a tax deed, irregular in form, made by the probate judge of Lee county to one A. R. Lyon, embracing the land in controversy and other lands, dated April 4, 1872, and duly acknowledged and recorded on that day. Said deed recited the sale of said section of land on March 9, 1870, for taxes thereon for the year 1869, and the purchase thereof at said sale by said A. R. Lyon, and that the sale was begun and held on said ninth day of March, 1870. Appellees, in offering said deed, stated that they did not offer it as evidence of a legal title in said Lyon, but only under their plea of the statute of limitations of five years, and to show color of title in said Lyon; and they offered in connection with said deed proof that the appellee Melissa J. Clayton, formerly widow of said Lyon, and her co-defendant, claimed to hold the land sued for, under, and through said Lyon. The appellant objected to the introduction of the deed in evidence, on the grounds, substantially, that a compliance with all the requirements of the statute, regulating the levy, assessment, and collection of taxes on said land for said year 1869, and sale of said land therefor, had not been shown; and also upon the ground that the deed showed on its face that the sale was begun March 9, 1870, when the law required it to be commenced the first Monday in the month, which was March 7th. The court overruled the objection and admitted the deed in evidence, and appellant excepted. The appellees also offered in evidence the tax collector's certificate of the purchase of said section of land at said sale by said A. R. Lyon, dated March 9, 1870, the day of the sale. The tax collector was introduced as a witness for appellees, and testified that he made the sale of said land, March 9, 1870, and executed and delivered said certificate to said Lyon on the day it bears date, and that he commenced his sales of lands March 7th, being the first Monday in the month. The appellees also introduced the tax collector's books from the year 1870 to 1876, both inclusive, showing that for each year during that time the land had been assessed to Lyon, and, in connection therewith, the tax receipts of the tax collector, showing payment of said taxes by said Lyon during said time.

The appellants objected to each portion of the foregoing testimony, as it was offered, from the certificate of purchase to the tax receipts, on the ground that it was irrelevant and incompetent, and on other grounds; but the court overruled each objection, and appellants excepted separately to the admission of each portion thereof.

There was evidence tending to show that Lyon took possession of the land in 1870, after his purchase at tax sale, and made improvements and placed tenants thereon; and remained so in possession claiming it as his, till he got this tax deed, and after that held under his tax deed; and there was also evidence tending to show that he took possession, in the fall of 1872, by contracting with the persons whom appellant had placed in possession in 1870; and the contract made with said persons was that Lyon agreed to sell each of them a portion of said land, to be paid for in two years, and, in default of payment of purchase money, rent was to be paid to said Lyon; and the evidence tended to show that said persons failed to pay the purchase money, and paid rent to Lyon to the time of his death, which occurred in November, 1876. There was evidence that, after the death of Lyon, said tenants remained on the land, and paid rent from year to year to appellee, Melissa J. Clayton, who was the administratrix of the estate of said Lyon, and the guardian of their infant daughter, Claudia M. Lyon, to whom they had executed a deed of gift of said land, November 27, 1876; and that, at the commencement of this suit, the co-defendant of said Melissa J. Clayton, and her present husband, J. W. Clayton, were in possession of parts of the land as tenants of said Melissa J. Clayton, and some of said co-defendants were the same who had entered upon the said land in 1870 as tenants of the appellant, said Charles M. Hooper.

F. C. Happy, a witness for appellees, testified that he saw Lyon on the land in 1871, and asked him, while both were on the land, if he was selling these lands; and Lyon replied that the lands were his; that certain tenants near by were his tenants; and that he had bought the lands at tax sale. The appellant moved to exclude the declaration of Lyon that the tenants were his tenants on the ground that the testimony was incompetent; and also to exclude the declaration that Lyon had bought the land at tax sale, on the grounds (1) that it was incompetent, and (2) that, being a declaration to the source of his claim or right of title, it was inadmissible. The court overruled the objections to both declarations separately, and appellant separately excepted.

One Hays, a witness for appellees, testified that he saw Lyon on the land in 1870, and Lyon told him (witness) that he had bought the land, and that witness could not cultivate the next year without paying rent to him of a small strip of the land, which witness was then cultivating by mistake. The court overruled a motion of appellant to exclude these declarations of Lyon on the ground of incompetency, and appellant excepted. There was evidence tending to show that appellant moved to Florida in 1872, leaving on the land the tenants he had placed there in 1870, and, among them, Jim Palmer, as his agent to procure other tenants, and look after the land; and that, before leaving, he also requested his brother, George Hooper, to exercise general supervision over the land and tenants; that he remained in Florida till 1876 and did not hear that Lyon claimed the land, and had tenants in possession thereof, until after Lyon's death, but that, as soon as he was informed thereof, he returned to Lee county, Alabama, and in the spring of 1877 went upon said land several times, and claimed it, and endeavored to get one Henry Lockey, who then was and had been a tenant of Lyon's on the land for five or six years, to sign a paper, acknowledging that he (Lockey) was holding the land for appe...