Dorlan v. Westervitch

• Decision Date: 17 May 1904
• Citation: 37 So. 382,140 Ala. 283
• Parties: DORLAN v. WESTERVITCH.
• Court: Alabama Supreme Court

37 So. 382

140 Ala. 283

DORLAN v. WESTERVITCH.

Supreme Court of Alabama

May 17, 1904

Appeal from Circuit Court, Mobile County; Wm. S. Anderson, Judge.

Action by Elizabeth Westervitch against George Dorlan. Judgment for plaintiff, and defendant appeals. Reversed.

The claim to title on the part of both the plaintiff and defendant was derived from adverse possession. The plaintiff's right of possession was based upon a deed from one Joseph Rose to the plaintiff and her husband, by which deed the said Rose attempted to convey unto the plaintiff property which included the property sued for in this action. This deed was executed in 1884. The said Joseph Rose claimed under a deed executed to him by one G. Horton judge of probate. This deed was dated April 23, 1874, and recited that the taxes on the lands therein described had not been paid for the years 1866 to 1871, inclusive, and that the said Rose was the purchaser of said lands at the tax sale. Said deed was not acknowledged before any officer or attested by any witness, and was not filed for record until April 15 1886. The defendant claimed to derive title from his father Mulford Dorlan, who held a deed from one Powell, who was the purchaser of the lands at an execution sale; said execution having been issued upon an attachment recovered against one Phillip Ignard, and levied upon the said land as belonging to said Ignard. The defendant also offered in evidence a deed from one John A. Cuthbert to said Phillip Ignard, purporting to convey the said land. This deed, however, was not allowed to be introduced in evidence. There was evidence introduced on the part of defendant tending to show that after Mulford Dorlan purchased the property from Powell he went in possession thereof, and permitted one Criminell and one Shambeau, each of whom was a son-in-law, to build two houses upon said property, each of which houses was occupied by said Criminell and Shambeau, respectively, at different times. There was also evidence introduced on the part of defendant tending to show that the plaintiff admitted to one Tam, who was the tax commissioner of Mobile county, that the land in question belonged to said Dorlan. The plaintiff introduced evidence tending to show that since the purchase of said lands by herself and her husband from Joseph Rose she had been in continuous possession thereof, exercising acts of ownership over said lands, and that one of the houses that was built upon said lands was occupied at the time of the institution of this suit by one Dr. Davis, under a contract of lease with her. It was also shown that the husband of the plaintiff was dead at the time of the institution of suit. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

The court, at the request of the plaintiff, gave to the jury among others, the following written charges, to the giving of each of which the defendant separately excepted: "(1) The court charges the jury that under the evidence in this case, if believed by the jury, the plaintiff is entitled to recover all of the land described in the complaint except that portion thereof upon which are located the two houses, one of which is spoken of in the evidence as having been built by Criminell, and the other of which is spoken of in the evidence as being occupied by Doctor Davis; and the court further charges the jury that the evidence in the case, if believed by the jury, also entitled the plaintiff to recover the land upon which each of these houses is built, unless the jury are reasonably satisfied from the evidence that the defendant and those under whom he claims have been in the open, notorious, exclusive and adverse possession thereof continuously for a period of ten years. (2) The court charges the jury that the undisputed evidence in this case, if believed by the jury, entitles the plaintiff to recover all of the lands sued for in the complaint which are outside of the inclosure around the two houses, one of which is spoken of in the evidence as having been built by one Criminell, and the other of which is spoken of in the evidence as being occupied by Doctor Davis. (3) The court charges the jury that under the evidence in this case, if believed by the jury, the plaintiff is entitled to recover all of the lands sued for in the complaint, except such portions thereof as the jury may be reasonably satisfied from the evidence have been in the actual, open, notorious, and exclusive possession of the defendant and his father for a continuous period of ten years, if the jury are so satisfied as to any part thereof." "(5) The court charges the jury that there is no evidence in this case that the defendant or his father ever had any possession of any portion of the land in question, except such as was occupied by the houses which were erected thereon by Criminell and Shambeau. (6) The court charges the jury that the defendant has not shown any right whatever to any part of the lands sued for in the complaint, unless the jury believe from the evidence that the defendant and his father have been in the open, notorious, continuous, adverse, and exclusive possession of some part of said land for a period of ten years; and, even if the defendant has reasonably satisfied the jury that they have been in such possession of a part of said land, then this would confer upon him the right only to that part of which they had such actual possession." "(9) The court charges the jury that the evidence in this case, if believed by the jury, entitles the plaintiff to recover all of the land described in the complaint not occupied by either of the houses spoken of in the evidence as having been built by Criminell and Shambeau, respectively, and also entitles the plaintiff to recover the land occupied by these houses unless the jury are reasonably satisfied from the evidence that the defendant and his father, under whom he claims, were in the possession of one or both of said houses, and that this possession was not only open, notorious, and exclusive, but that it continued consecutively for ten years; and the defendant can defeat the plaintiff's recovery, if the jury believe all of the evidence, only as to whatever portion, if any, the jury may find that the defendant or his father acquired the title to by means of such open, notorious, exclusive, adverse, and continuous possession for ten years. (10) The court charges the jury that there is no evidence in this case that the defendant ever had any right or title to any part of the land sued for, whatsoever, unless it was obtained by the open, notorious, exclusive, and adverse possession thereof for a continuous period of ten years; and there is no evidence that he ever had any such possession of any part of the land sued for except as was occupied by the two houses built by Criminell and Shambeau, and the question whether he ever had such possession of the land occupied by either of such houses is a question for the determination by the jury from the evidence. (11) The court charges the jury that while the tax deed in this case was void, and of itself conveyed no title, yet if Rose entered into the possession of the land claiming the same thereunder, and then conveyed the land to the plaintiff, and she took possession under her deed, this would give her a good right to the land as against the defendant and all other persons having no title thereto, and her claim could not be defeated by them without proving that they had subsequently taken the possession of the land, and retained it for ten years in their open, notorious, actual, exclusive possession." The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) The statute of limitation, or claim by adverse possession, under the tax deed to Joseph Rose, was not set in operation until it was recorded." "(3) If the jury believe from the evidence that the plaintiff limited her claim to the land mentioned in the deed made to her by Joseph Rose on the north side by the south line of the land sued for, and if she has not claimed the land described in the complaint for ten years continuously under said deed, then she would not be entitled to recover, although the jury may believe the land sued for is embraced in the description contained in said deed. (4) If the jury believe the evidence, they should find the defendant not guilty." The second charge refused to the defendant, being admitted to have been properly refused, is not set out. There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

L. H. & E. W. Faith, for appellant.

Gregory L. & H. T. Smith, for appellee.

HARALSON J.

1. L R. Bart, shown to be the county surveyor, and one of experience for about 20 years, surveyed the land sued for in October, 1900, and made a map of it, which map was introduced in evidence and was before the witness when testifying. The plaintiff handed the witness plaintiff's deed which he said he would offer in evidence, and asked the witness to state, "whether or not the land described in the complaint, (which was also handed the witness) is a part of the land described in the deed?" and the witness answered that...