Gibson v. Gaines

• Decision Date: 30 June 1916
• Docket Number: 6 Div. 108
• Citation: 198 Ala. 583,73 So. 929
• Parties: GIBSON v. GAINES et al.
• Court: Alabama Supreme Court

73 So. 929

198 Ala. 583

GIBSON v. GAINES et al.

6 Div. 108

Supreme Court of Alabama

June 30, 1916

Rehearing Denied Jan. 18, 1917

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Ejectment by S.J. Gaines and others against H.P. Gibson. Judgment for plaintiffs, and defendant appeals. Affirmed.

Ernest Lacy and Ray & Cooner, all of Jasper, for appellant.

Bankhead & Bankhead, of Jasper, for appellees.

THOMAS J.

The judgment entry states that the defendant disclaimed as to the lands east of the wire fence and pleaded the general issue as to the other lands sued for. On the trial the issue of fact was submitted to the jury, and from a verdict and judgment for plaintiffs defendant appeals, here assigning rulings on evidence and the refusal of requested written charges as error.

It was admitted that the lands in question were patented to H.P Gaines, who held the same until his death in January, 1865 and that thereafter deed by all his heirs at law was made to George S. Gaines; that on May 6, 1885, said last grantee conveyed said lands to his wife, Frances A.E. Gaines; that she died March 10, 1891; that George S. Gaines died on December 22, 1910, leaving plaintiffs as all his heirs at law and next of kin. From March 10, 1891, to the date of his death, George S. Gaines held as life tenant the lands of his deceased wife, Frances A.E. Gaines.

Plaintiffs sought to show that he so held the land in question, and that as remaindermen they were not entitled to the possession thereof till the death of their father, George S. Gaines that defendant, or his grantee, never had possession of the lands west of the fence until a short while before the suit was brought, and when defendant erected a wire fence around the same; that the defendant's father and grantor, Dan J. Gibson, never had possession of the lands in question.

The defendant sought to show that for more than 45 years his immediate predecessor in estate had the actual possession of the questioned tract of land west of the fence and held it till he sold it and delivered possession thereof to defendant in 1884, and that thereafter, up to and at the time of the trial, defendant had adverse possession of the same.

Thus the question of possession and its character was a material inquiry. The question was whether the land on each side of the line where the fence stood was held by the respective owners, believing that fence line to be the true dividing line between them and intending to hold only to the true line, or whether they respectively intended to hold to that line without regard to whether it was the true line. That is to say, if the Gibsons and the Gaineses respectively claimed and held the land to that fence line, or the line where the fence was, believing it to be the true line between their lands and not intending to claim and hold beyond the true line, and that line was not the dividing line between their lands, then such claim and possession of either, under mistake of fact as to the true line, would not be a claim and possession adverse to the right of the other coterminous landowner. If, on the other hand, Dan J. Gibson claimed and held possession of the lands in question west of that fence line and up to the line where the fence stood, to the time of the death of Frances A.E. Gaines (March 10, 1891), and at the time of his conveyance to appellant in 1884, and during said time George S. Gaines held the possession of the land on the east side of and to the point where the fence stood, and thereafter their immediate successors in title respectively continued to so claim and hold the land till the death of Mrs. Frances A.E. Gaines, and each of said coterminous landowners held to that line as the true line between them, then such claim and continuous possession of each would be adverse to the other. Smith v. Bachus, 70 So. 261.

The trial court, at defendant's request, correctly submitted for the consideration of the jury the fact and character of the possession of the respective coterminous landowners.

There was no error in refusing written charges 2 and 3, requested by defendant. McLester Building Co. v. Upchurch, 180 Ala. 23, 60 So. 173.

Defendant, in setting up his claim of adverse possession, was allowed to give in evidence declarations of claim of ownership by Dan J. Gibson, defendant's ancestor and immediate predecessor in title, and of George S. Gaines, plaintiffs' ancestor and predecessor in title, they being at the time coterminous landowners. Such evidence tended to show the character of possession by which the lands in dispute were then held. When a defendant is claiming title by adverse possession, reputation of ownership may be given in evidence. Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 14 Sup.Ct. 458, 38 L.Ed. 279; Johnson v. Rhodes, 62 Fla. 220, 230, 56 So. 439; Sparrow v. Hovey, 44 Mich. 63, 6 N.W. 93; Knight v. Knight, 178 Ill. 556, 53 N.E. 306; Eastern Oregon Land Co. v. Cole, 92 F. 951, 35 C.C.A. 100; Smith v. Bachus, supra. Such declarations are not admissible to show the quantum of estate, but are admissible to explain the nature of the possession. McBride v. Thompson, 8 Ala. 650; Gary v. Terrill, 9 Ala. 206; McLeod v. Bishop, 110 Ala. 640, 20 So. 130; Holman v. Clark, 148 Ala. 286, 41 So. 765; Pelham, Sitz & Co. v. Herzberg-Loveman D.G. Co., 69 So. 881; 1 Greenl. on Ev. § 108.

Defendant having given in evidence such declarations of the coterminous landowners, as tending to show the claim of ownership of the Gibsons of the lands in question to the fence line, or the line on which the fence was later erected, and to show a recognition by George S. Gaines and Frances A.E. Gaines of such claim of ownership to said line, it is clear that this tendency of the evidence was subject to be rebutted by evidence tending to show conflicting declarations of ownership, of such respective coterminous landowners, made while they were in possession of the respective tracts of land on both sides of the line in dispute. It is the best evidence obtainable; it is a part of the res gestae of possession.

It might be impossible for a plaintiff to adduce proof of denial of the particular declaration given in evidence where the defendant founds his title on claim of adverse possession, whereas there might be abundant evidence to show contrary declarations, made by such coterminous landowner in possession, as to the character of the possession.

In Quinn v. Eagleston, 108 Ill. 254, it was held that the planting of a hedge, in from the line of the land, was an equivocal act; that it might be interpreted as a dedication to the public, to that extent, or as setting the hedge on the true line; that "the declarations of E., when he was the owner and in possession of the land, explanatory of his intention in leaving the strip of land open, we think were properly admitted *** as a part of the res gestae, as accompanying the acts of throwing the land open and keeping it...