Driver v. King

• Decision Date: 17 February 1906
• Citation: 40 So. 315,145 Ala. 585
• Parties: DRIVER ET AL. v. KING.
• Court: Alabama Supreme Court

40 So. 315

145 Ala. 585

DRIVER ET AL. v. KING.

Supreme Court of Alabama

February 17, 1906

Appeal from Circuit Court, Perry County; John Moore, Judge.

"To be officially reported."

Ejectment by James T. King against Frank Driver and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Thomas E. Knight and De Graffenried & Evans, for appellants.

Stewart & Stewart and Phares Coleman, for appellee.

DENSON J.

This cause was tried at the fall term 1903, of the circuit court held for the county of Perry. Under the law as it then existed, relating to the time for holding the circuit court in that county, the court was properly organized on the 9th Monday after the last Monday in August, which was the 2d day of November in 1903. Acts of the General Assembly 1900-01, p 103. By the act of the Legislature approved the 13th day of February, 1903, the time for holding the circuit court in Perry county was changed to the third Monday before the last Monday in February and August in each year. The third section of this act provides that all laws in conflict with its provisions are repealed. The fourth section of the act provides that it shall go into effect from and after the 1st day of January, 1904. Acts of the Legislature 1903, p. 554. Under this last act the spring term, 1904, of the circuit court held for Perry county began on the 8th day of February that being the third Monday before the last Monday in that month. The judgment appealed from was rendered on the 4th day of November, 1903, and 60 days were allowed by order of the court within which a bill of exceptions might be presented for the presiding judge's signature. Several times this time was extended by order of the presiding judge made in vacation, and the bill was finally signed on the 20th day of April, 1904, within the time of the last extension order, but after the succeeding term of the court at which the cause was tried had been held. Motion has been made to strike the bill of exceptions on the ground that it was signed after the next succeeding term of the court. Practice rule 30, Code 1896, p 1200, is as follows: "In all circuit and inferior courts of common-law jurisdiction, bills of exceptions may be signed by the presiding judge at any time during the term at which the trial or proceeding is had, or, by written consent of the parties, or their counsel, filed in the cause, at any time before the next succeeding term of such court, and not afterwards." It is upon this rule the motion to strike is based. It will be observed that this rule only applies to bills of exceptions signed under agreement of counsel. There is no agreement of counsel with respect of the signing of the bill in this case, but the original order extending the time was by the court, and all subsequent orders were made by the presiding judge in vacation. Consequently the rule of practice under the construction given it by us in the case of Cooley v. U.S. Savings & Loan Association, 132 Ala 590, 31 So. 521, followed by the cases of Birmingham Railway & Electric Co. v. James, 138 Ala. 594, 36 So. 464, and Abercrombie & Williams v. Vandiver, 140 Ala. 228, 37 So. 296, has no application here. The validity of the bill of exceptions must be determined by section 620 of the Code of 1896, which provides that the time allowed for signing a bill must not be extended beyond six months from the adjournment of the court. The bill was signed within six months from the adjournment of the court, and within the time fixed by the last extension order. All the orders made by the presiding judge in vacation extending the time as fixed by the court in term time are sufficiently shown. It follows that the motion to strike the bill of exceptions must be overruled. The action is common-law ejectment by James T. King against E. N. Driver and Frank Driver to recover 20 acres of land described in the declaration. The plaintiff obtained judgment below and the defendants appealed.

Eleven demises are laid in the declaration. The plaintiff to show title to the land offered the following documentary evidence: Certified copies of the record of the following deeds: A deed from Charles Phillips to Levi Duckett, January 14, 1837; a deed from Levi Duckett to L. Q. C. De Yampert, May 7, 1851; a deed from L. Q. C. De Yampert to J. B. Markham, executed in May, 1855; a deed from J. B. Markham to Romulus W. Moore, May 10, 1855; a deed from Thomas C. Clark as administrator of the estate of Romulus W. Moore, deceased, to Thomas C. Hill, November 29, 1877; a deed from Thomas C. Hill to A. A. Coleman and James B. Coleman, January 27, 1878; a deed from Maria E. Moore to A. A. Coleman and James B. Coleman, November 29, 1877; a deed from the heirs at law of Romulus W. Moore, deceased, to A. A. Coleman and James B. Coleman, November 28, 1877; original deed from James B. Coleman to A. A. Coleman, as trustee, etc., March 21, 1885; original deed from Jones Coleman, one of the cestuis que trust in the deed to A. A. Coleman, trustee, to W. T. Monghon, May 6, 1899; original deed from J. B. Coleman, Jr., one of the cestuis que trust in the trust deed to A. A. Coleman, to W. S. Monghon, February 26, 1900; original quitclaim deed from Jones Coleman and James B. Coleman, Jr., to W. S. Monghon, July 13, 1900; original deed from A. A. Coleman and W. S. Monghon to James T. King, August 17, 1900. In support of the deed made by Thomas C. Clark as administrator a certified transcription of proceedings had in the probate court of Greene county, Ala., was offered in evidence by the plaintiff.

This transcript showed the appointment of said Clark as the administrator of the estate of Romulus W. Moore, deceased, and regular proceedings had at the instance of the administrator, resulting in the sale of the lands in controversy as a part of the lands belonging to said estate, report of the sale showing that Thomas C. Hill and Maria Moore were the purchasers of the land, payment of the purchase money, and order that the administrator should make the conveyance. To each of the certified copies of deeds and the original deeds in evidence, and to the transcript of the proceedings had in the probate court of Greene county, the defendant interposed the following objections, to wit: "(1) It had not been shown that the grantor in said deed was either in the possession of or owned said land at the time of the execution of said deed. (2) For that until it had been shown that the grantor either owned or was in possession of said land at the time of the execution of the conveyance the said deed was not admissible in evidence. (3) For that said deed was incompetent evidence. (4) For that said deed was not self-proving." The court overruled each of these objections and exception was reserved.

The first and second of the grounds of objection are the only ones insisted upon and we will consider the rulings of the court with respect to these two grounds only. It is not contended that there was any evidence which tended to show that Phillips, Duckett, or Markham was ever in possession of the lands, nor was there any to show that either of them held title from the United States. But there was evidence which tended to show that Romulus W. Moore, after the deed from Markham was executed, entered into possession of the land sued for, claimed them as his own, and died in possession of the lands in the year 1867. There was also evidence which tended to show that the grantors in the deeds in evidence, made subsequent to the death of Romulus W. Moore, were in possesion, or that they held in privity to the title and estate of Romulus W. Moore. It is undoubtedly true that "a plaintiff in ejectment, in order to make out a right to recover, must show a regular chain of title back to some grantor in possession or to the government." Tillinghast's Adams on Ejectment (1840) p. 212; Florence B. & I. Association v. Schall, 107 Ala. 531, 18 So. 108; Jackson Lumber Co. v. McCreary, 137 Ala. 278, 34 So. 850. This doctrine was recognized by the trial court when, at the request of the defendants (appellants) in writing, as is shown by the record, the court charged the jury that there could be no recovery by the plaintiff on the demise by J. B. Markham. This was equivalent to an exclusion from the evidence of the deeds of Phillips to Duckett, Duckett to Markham, and Markham to Moore. And if the court erred in the admission of those deeds in evidence it was cured by the charge given. The court further charged the jury in writing, at the request of the defendants that the plaintiff had not shown any title from the United States government. Under the evidence, the objections insisted upon cannot prevail with respect to the deeds offered in evidence, which were executed subsequent to the death of Romulus W. Moore. This disposes of the assignments of error numbered from 1 to 13 inclusive.

The plaintiff and defendants were adjacent landowners. The record shows that the real question or issue involved was that of adverse possession or not by the defendants for a sufficient time to bar the plaintiff's right of recovery. The defendants both testified that their claim to the land was independent to any paper title. Their contention was that their father, as far back as 60 years prior to the commencement of this suit, was in actual possession of claiming the lands as his own, and exercising acts of ownership over it until his death, the date of which event is not precisely shown, but prior to the year 1874. That their mother succeeded to the father's possession, and held the same until her death in 1875, when the defendants and their sister succeeded to her possession, and have held it continuously ever since, exercising acts of ownership over it. The proof showed without conflict that ...