Gist v. Beaumont

• Decision Date: 21 June 1894
• Citation: 16 So. 20,104 Ala. 347
• Parties: GIST v. BEAUMONT.
• Court: Alabama Supreme Court

16 So. 20

104 Ala. 347

GIST v. BEAUMONT.

Supreme Court of Alabama

June 21, 1894

Appeal from circuit court, Colbert county; H. C. Speake, Judge.

Ejectment by C. W. Beaumont against William Gist. From a judgment for plaintiff, defendant appeals. Reversed.

The appellee, Charles W. Beaumont, on January 10, 1889, brought the present action of ejectment against the appellant William Gist, for the recovery of a certain lot in the city of Tuscumbia. The plaintiff's claim was founded upon a deed which was executed by the mayor of the city of Tuscumbia to him as the purchaser of said lot at a sale for taxes thereon due to said city of Tuscumbia. This deed was executed on January 4, 1882. It was not acknowledged, but was attested, and was duly recorded in the probate office of Colbert county. To the introduction of said deed in evidence the defendant objected on the ground that it had not been acknowledged or probated as required by law; second, not being so acknowledged or probated, it was not such a conveyance as the record thereof would operate as notice and, third, because it was void on its face. The court overruled each ground of this objection, and the defendant duly excepted. The plaintiff, as a witness in his own behalf testified that, after he received the said deed to the property from the mayor, he went into possession, and had the property surveyed, and drove down "small wooden corner pegs, and other such pegs, every fifty feet around such lot and nailed a small wooden board on the tree on the lot," with his name on it; that the lot was used by him; and that he paid the taxes thereon until the year 1887, but did not pay taxes after the defendant, Gist, took possession. The defendant objected to the testimony of the plaintiff in regard to the payment of taxes, and moved to exclude the same, on the ground that the "records and receipts were the best evidence of such payment." The court overruled such objection and motion, and the defendant duly excepted. The plaintiff also testified that when he left Tuscumbia, some time after his purchase of the lot, he asked his wife to look after the said lot, and also placed it in charge of real-estate agents, to sell for him. The defendant moved to exclude this testimony, and duly excepted to the court's overruling his motion. The testimony for the defendant, and the basis of his claim, are sufficiently stated in the opinion. The court, at the request of the plaintiff, gave to the jury the following written charges: (1) "If the jury believe from the evidence that the plaintiff was in adverse possession of the lot at the time the defendant bought it, and further believe from the evidence that plaintiff's deed from the city of Tuscumbia was recorded in the office of the judge of probate of Colbert county at the time defendant bought it, then the defendant is chargeable with notice of plaintiff's claim." (2) "The deed executed by Challen to the defendant would not authorize the defendant to go on the land and take possession of it, unless you believe from the evidence the Challen had a claim to the land before he executed the deed." (3) "The jury are not authorized to consider the question of improvements on the value of the lands, unless you believe from the evidence defendant had possession of the land three years before the bringing of the suit." The defendant separately excepted to the giving of each of these charges and also separately excepted to the court's refusal to give each of the following charges requested by him: (1) "Even if Beaumont had possession of the lot for 5 years, with color of title, this is not sufficient to enable him to recover in this action." (2) "The recorded tax deed of the city of Tuscumbia to Beaumont was no notice to Gist that Beaumont had, or claimed to have, a claim on the lot sued for." (3) "Unless Beaumont, or those under whom he claims, was in possession of the property for ten years before the suit was brought, he cannot recover in this action." (4) "The defendant, William Gist, was not a trespasser on the land sued for at the time the suit was brought." (5) "If the jury believe the evidence, they will find for the defendant." There was judgment for the plaintiff. Defendant appeals, and assigns as error the rulings of the court upon the evidence, the giving of the charges requested by the plaintiff, and the refusal to give the charges requested by the defendant.

Jackson & Sawtelle, for appellant.

Kirk & Almon, for appellee.

COLEMAN J.

This was an action in ejectment, brought by the appellee against the appellant. It may be safely asserted that neither party at the trial held a perfect legal title. The plaintiff introduced evidence tending to show possession prior to that of the defendant, and, in connection with the fact of prior possession, introduced in evidence, against the objection of the defendant, an instrument in writing purporting on its face to be a conveyance of the lands to plaintiff, signed by one Cooper, mayor. The instrument bore date January 4, 1882 and recited that the lot had been sold for nonpayment of municipal taxes. This instrument had been recorded, but there was no proof of its execution, nor had it been acknowledged before any officer. One of the grounds of...