East Tennessee, V. & G. Ry. Co. v. Davis

• Decision Date: 17 November 1890
• Citation: 91 Ala. 615,8 So. 349
• Court: Alabama Supreme Court
• Parties: EAST TENNESSEE, V. & G. RY. CO. v. DAVIS.

8 So. 349

91 Ala. 615

EAST TENNESSEE, V. & G. RY. CO. v. DAVIS.

Supreme Court of Alabama

November 17, 1890

Appeal from circuit court, Cherokee county; JOHN B. TALLY, Judge.

This was a statutory real action in the nature of ejectment brought by the appellee against the appellant, to recover a certain parcel of land specifically described in the complaint. The defendant disclaimed as to all except about three acres, on which are located the "Rock Run section-houses." The plaintiff claims through one Stocks, who purchased from one Webb, as administrator of the estate of one Alexander, while the defendant claims to have bought said land from said Alexander in June or July, 1869 the consideration being the building of a side of spur track for Alexander up to his mill. The defendant further claims to have been in possession of said three acres ever since that time, and that it was in such possession at the time of Stock's sale to the plaintiff Davis. The plaintiff undertook to rebut this claim of the defendant by attempting to show that the defendant, through its agents, acknowledged that it held said land under Stocks, and that its possession and all acts thereunder were therefore permissive, and hence not adverse. The plaintiff introduced in evidence the deposition of Stocks, and the following questions, with the answers thereto, were admitted against defendant's objection: "State that if at any time you were in possession of said lands, claiming them as your own, and exercising ownership over them." "If yea, please state the nature and extent of your possession, and how long you claimed them; from whom you received possession, and when and how long you were in such possession." "Who was in possession, claiming and controlling said lands, when said houses were built? If said houses were built by permission of any one, state by whose permission, if you know." In this deposition several questions and answers in reference to communications from different officers of the railroad to Stocks, such as the recognition by Stocks of the handwriting of such officials, and in what capacity they were acting when these communications were written, were also admitted against defendant's objection. The officers so inquired about were Messrs. Bridges, O'Brien, and Lapsley. The defendant also objected and duly excepted to questions asked said Stocks as to whom the defendant recognized as owner of the land "while you were in possession," and "did they claim to own said land during that time?" The plaintiff then, against the objection and exception of defendant, introduced as Exhibit A a letter from Mr. Bridges the superintendent of defendant, to Mr. O'Brien, and also as Exhibit B an agreement sent by the officers of defendant to said Stocks to be signed by him, and then signed by the officer of defendant, on which there would be a settlement of the claim to the three acres in controversy. This agreement was not signed by Stocks, and was not returned by him to the officer who sent it, but was kept by Stocks. On the examination of Lapsley as a witness the court required him to surrender to the inspection of plaintiff and his counsel certain papers which Lapsley had in possession in reference to the section-houses, and the land in controversy; to which the defendant duly excepted. The court also allowed the plaintiff, against the objection and exception of defendant to introduce in evidence letters from Lapsley to McGarr, and from Lapsley to Stocks, in which there was a discussion of the claim to the three acres, and in which there were some admissions as to Stocks' title to the said land. Among other charges which were asked by the defendant, and refused by the court, and to which refusal the defendant separately excepted, were the following: "No. 7. The letters from Lapsley to McGarr, or from Lapsley to Stocks, are not admissions of title, or of the character of defendant's possession, which could in any way bind the defendant." "No. 11. No mere admission or declaration of any agent or employe of the railroad would bind the defendant, unless such admission or declaration was authorized by a note of the board of directors, or other authority, authorizing such admission or declaration. No. 12. If the jury believe from the evidence that the defendants, or those under whom they claim, went in possession of the three acres on which the section-houses were located, under a contract with Alexander, by which they were to have said three acres if they would build a spur or side track, that they soon after went into possession of said three acres, built the section-houses, and also built the spur track, then their possession was adverse, and the burden of showing it was not on plaintiff." "No.16. Actual occupancy and substantial inclosure of land by a defendant, or those under whom he derives title or possession, accompanied by acts of ownership in another, is presumptively adverse possession." "No. 27. If the defendant was in actual occupancy of the three acres and section-houses at the time of Davis' purchase, he was bound to make inquiry of the railroad company as to the character of their possession." There were verdict and judgment for the plaintiff, and the defendant prosecutes this appeal, and assigns the many and various rulings of the lower court as error.

J. L. Burnett, for appellant.

Jo. A. Walden, for appellee.

STONE C.J.

The testimony in the present record convinces us that the railroad company's section-houses were first placed on the three acres of land in controversy about the year 1869 some 18 years before this suit was brought. At that time Alexander owned the land. There is no attempt to prove that any written agreement was entered into between Alexander and the railroad company, and we infer, and must presume, that none was entered into. There is some proof tending to show that there was a verbal agreement or understanding, under which Alexander surrendered the land, or its use, to the railroad company for the purpose to which the railroad applied it, in consideration that the latter would construct a side or spur track on the former's land, and that the railroad company did construct such side or spur track. On the other hand, it is contended that the railroad company did not hold the possession under claim of right, but under a parol license, and permissively, not asserting any right to the possession. It is not shown at what time the side or spur track was constructed. The exact agreement or understanding, if any was made, under which the railroad company took possession and constructed its section-houses, was perhaps the most important inquiry presented for the jury's decision. Our statute (Code 1886, § 1732) makes void all contracts for the sale of land, or any greater interest therein than a lease for a term not exceeding one year, unless the contract is in writing, subscribed by the party to be charged, or by some other person by him thereunto lawfully authorized in writing. But the statute has an exception. It does not apply when the purchase money, or a portion thereof, is paid, and the purchaser is put in possession by the seller. Hence, in this case, if Alexander and the railroad company made an agreement by which the latter was to have the three acres of land, or its use, and in consideration thereof was to construct, and did construct, the side or spur track, this took the contract without the influence of the statute of frauds, and constituted it a valid contract of bargain and sale. Shakespeare v. Alba, 76 Ala. 351; Martin v. Blanchett, 77 Ala. 288; 8 Amer. & Eng. Enc. Law, 738 et seq. And if the railroad company was in possession at the time Stocks made his purchase, this was sufficient notice to put him on inquiry as to the nature of the railroad's claim. 3 Brick. Dig. p. 811, § 163 et...