Hicks v. Burgess

• Citation: 64 So. 290,185 Ala. 584
• Parties: HICKS v. BURGESS.
• Decision Date: 22 January 1914
• Court: Supreme Court of Alabama

64 So. 290

185 Ala. 584

HICKS v. BURGESS.

Supreme Court of Alabama

January 22, 1914

Appeal from Circuit Court, Cleburne County; E.J. Garrison, Judge.

Ejectment by J.A. Burgess against Madison Hicks. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The land in dispute was a small portion of the S.E. 1/4 of the S.E. 1/4, section 21, township 16, range 10, Cleburne county which was cut off from the rest of the 40 by the Tallapoosa river. Neither party showed any connection with the actual title and the sole issue was the sufficiency of the alleged prior possession of plaintiff's grantors to entitle him to recover. Plaintiff claimed under a deed to him from Mrs M.R. Ross, as guardian of T.H. and L.M. Ross, who were her minor children; the deed being duly authorized by judicial decree. The father of these children, and the husband of Mrs Ross, was Gus Ross, deceased, and he was the son of Fred Ross, also deceased. The possession relied on by plaintiff is substantially shown by his witnesses as follows:

Fred Ross was in possession of the fish trap fraction and cultivated part of it. He did not cultivate the part in suit and it was never cultivated or cleared up in his lifetime, but it was his land, and he was in possession of it. (Testimony of Mrs. Amanda Rusk.) The witness was allowed to state, against defendant's seasonable objection that it was her opinion or conclusion, that Fred Ross controlled possession of all of the fish trap 40, which included the strip in suit. The witness further testified that she never saw him on the land.

Mrs. M.R. Ross testified that she was not acquainted with any of the land involved in the suit, or those conveyed to plaintiff by her deed as guardian; that she was never on this land, had never seen the tract, and knew nothing about it; that she could not say that she was ever in possession of this particular land involved in that suit, but that she was in possession about 18 years after Mr. Ross' death (that is, she had control of it, and had possession of the land called for in the deed); that she rented it out, the land she claimed and owned, did not go to see about it.

The evidence shows without dispute that James Hicks, father of defendant, had had actual possession of the strip under claim of ownership from 1901, and until he died, and since which time defendant has possessed and claimed it. It does not appear when Fred Ross and Gus Ross died. The assignments of error are based upon the rulings on the evidence, and the giving and refusing of charges which sufficiently appear from the opinion.

Merrill & Vann, of Anniston, for appellant.

Blackwell & Agee, of Anniston, for appellee.

SOMERVILLE J.

The plaintiff, not showing title either by deed or by adverse possession, and never having had possession himself, could recover only by showing prior possession in some one of his grantors.

Conceding that Fred Ross had some sort of possession before and at the time of his death, presumably prior to 1870, it does not appear that his son Gus Ross ever had possession of or did any act of ownership with respect to the disputed strip. The abandonment seems to have been complete. Not having either title or possession at the time of his death, nothing could pass by descent from him to his children.

Plaintiff's connection with a prior possession depends therefore, upon proof that the minor children of Gus Ross, whose estate he acquired by guardian's deed, were in possession of the strip either in person or by their guardian; and that their possession continued until it was superseded by the entry and possession of James Hicks in 1901; or else, if discontinued before that event, that there was an animus revertendi. McCreary v. Jackson Lumber Co., 148 Ala. 247, 41 So. 822; Fletcher v. Riley, 148 Ala. 236, 42 So. 548; Id., 169 Ala. 433, 53 So. 816. The burden of affirmatively proving these issues was upon plaintiff, and he has clearly failed to do so.

It is true that the guardian, Mrs. M.R. Ross, who was the widow of Gus Ross, stated that she was in possession of the land described in the deed about 18 years after Mr. Ross' death. But it does not appear that this was in the capacity of guardian, nor, indeed, that she was guardian at that time. But, waiving this infirmity, her whole testimony shows that she never had any sort of possession of the particular land in dispute. She stated positively that she never saw it never was on it, and knew nothing about it. It is...