Holt v. Adams

• Decision Date: 08 November 1898
• Citation: 25 So. 716,121 Ala. 664
• Parties: HOLT v. ADAMS ET AL.
• Court: Alabama Supreme Court

25 So. 716

121 Ala. 664

HOLT v. ADAMS ET AL.

Supreme Court of Alabama

November 8, 1898

Appeal from circuit court, Shelby county; Geo. E. Brewer, Judge.

This was a common-law action of ejectment brought by H. B. Holt against J. B. Adams and others. Upon the introduction of all the evidence, the plaintiff requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe the evidence, you must find the defendant's suggestion of adverse possession to be untrue." (2) "If you believe from the evidence that Willoughby, the agent of the railroad company, told Mr Stein, at the time of the sale to him, that the kiln was not on the land sold him, he cannot claim to be a purchaser in good faith of the kiln, his suggestion of adverse possession must fail, and you must find it to be untrue." (3) "If you find the suggestion of adverse possession to be true, you must assess the value of the use and occupation according to its value when Stein took possession, and from that date to the present date." (4) "If you find the suggestion of three years' adverse possession to be true, you must assess the value of the land according to its value when Stein took possession." The judgment entry in the case was as follows: "This day, March 22, 1898, come the parties, by their attorneys, and, by leave of the court first had and obtained, the plaintiff amends his complaint by adding the words, 'Shelby county, Alabama,' to the description of the lands sued for in the first demise; and amends his complaint further by striking out in the second demise laid in the complaint the words ' 1/4 section,' and substituting therefor the words ' 1/16 of a section'; and the defendant, before entering upon the trial, suggests upon the record that he, and those whose possession he has had for three years next before the commencement of the suit, had adverse possession of that portion of the land sued for described in their plea of not guilty, and as to which he pleads not guilty. Issue being joined upon the defendants' plea of not guilty, and upon the defendants' suggestion of three years' adverse possession, thereupon came a jury of good and lawful men, to wit, M. T. Horton, foreman, and eleven others, who, being impaneled and sworn according to law, upon their oaths do say: 'We, the jury, find the issue in favor of the plaintiff for a part of the S.E. 1/4 of N.W. 1/4 section 9 township 22 S., range 2 W., Shelby county, Ala., beginning at the southeast corner, and running north 200 ft.; thence west 300 feet; thence south 200 feet; thence east 300 ft., to the point of beginning,-on which is located a limekiln cooper's shop, tram road, lime house. We further find the defendants' suggestion of three years' adverse possession true. We further find the value of the improvements to be $1,700. We find the value of the land to be $5. We further find the value of the use and occupation of the said property without the improvements to be $900.' It is thereupon considered by the court that the plaintiff have and recover of the defendants the following described property, to wit: A part of the S.E. 1/4 of N.W. 1/4 of Sec 9, township 22 S., range 2 W., beginning at the S.E. corner of S.E. 1/4 of S.W. 1/4 of said section 9, Tp. 22 S., R. 2 W.; running north 200 feet; thence west 300 feet; thence south 200 feet; thence east 300 feet, to point of beginning,-on which is located a limekiln, cooper's shop, tram road, lime house, together with the costs in this behalf expended, for which let execution issue. It is further considered by the court that the plaintiff have and recover of the defendants all of the S.E. 1/4 of N.W. 1/4 of section 9, Tp. 22 S., R. 2 W., that is described in the defendants' plea of disclaimer, to wit: All of said land sued for, except a certain strip beginning at the southeast corner of the tract sued for; thence north 200 feet; thence west 300 feet; thence south 200 feet; thence east 200 feet, to point of beginning,-said strip including a certain limekiln, cooper's shop, tram road, lime house, and siding. It is further considered by the court that no execution or writ of possession shall issue until one year after the date of this judgment, in accordance with section 2704 and 2705 of the Code of 1886." The plaintiff appeals, and assigns as error the refusal of the court to give to the jury the several charges requested by him, and the description in the judgment of the starting point of the boundary of the land recovered, and in ordering in said judgment that no writ of possession shall issue until one year, etc. Affirmed.

Lackland & Wilson, for appellant.

A. Latady, Brown & Leeper, and Mr. Oliver, for appellees.

BRICKELL C.J.

This is an action of ejectment by the appellant to recover possession of "the southeast quarter of the northwest quarter of section 9, township 22, range 2 west, situated in Shelby county, Alabama; the same being the subdivision of land upon which is located the limekiln on the South & North Alabama Railroad, formerly operated by N. B. Dare, and known as the 'Dare Kiln."' Defendant disclaimed possession of all the land sued for, except a part thereof 200 feet by 300 feet, particularly described, on which is situated the limekiln, etc., and as to this part he pleaded not guilty and the statute of limitations of 10 years. Before entering on the trial, defendant also suggested upon the record, as authorized by section 1536, Code 1896, adverse possession for three years next preceding the commencement of the suit, and the erection of permanent improvements. Plaintiff proved title to the land described in the complaint, derived by mesne conveyances from the United States. Defendant offered no evidence of title to the land sued for, but his testimony tends to show that on January 13, 1887, one Stein purchased from the Louisville & Nashville Railroad Company the E. 1/2 of the S.W. 1/4 of the same section, adjoining the land sued for on the south; that before he purchased the land the Calera Land Company, the owner of the land sued for, had caused a survey thereof to be made, and immediately after the purchase by Stein the latter had a survey made of the land bought by him from the railroad company, and, according to both surveys, the limekiln was on the N.E. 1/4 of the S.W 1/4, the land purchased by him; that, while Stein was negotiating for the purchase of the land, the agent of the railroad company pointed out the line dividing the N.E. 1/4 of the S.W. 1/4 from the S.E. 1/4 of the N.W. 1/4, and, according to this line, the kiln was on the land he bought from the railroad company; that he bought the kiln believing it to be on the land bought from the railroad company, entered into possession thereof at the time of the purchase, and held possession until he sold to defendant Meyer, on March 27, 1895. Meyer testified that "he bought the kiln from Stein in 1895; that he entered into and held possession of it under the deed of Stein to him dated March 27, 1895, *** and had had actual possession of it through himself and tenants ever since that time." The deed from Stein to Meyer conveyed the N.E. 1/4 of the S.W. 1/4, the subdivision adjoining that described in the complaint. Six or seven years after Stein went into possession of the land and kiln, which he supposed was on the land when he took possession, the kiln was destroyed by fire, and he erected a new kiln, together with other improvements, on the site of the old one. There was also evidence, which was somewhat in conflict, tending to show the value of the land not disclaimed without any improvements thereon, the value of the improvements when Stein took possession, the value of the improvements erected by Stein, and the value of the use and occupation of the land without any...