Hornsby v. Tucker

• Citation: 61 So. 928,180 Ala. 418
• Parties: HORNSBY v. TUCKER.
• Decision Date: 17 April 1913
• Court: Supreme Court of Alabama

61 So. 928

180 Ala. 418

HORNSBY v. TUCKER.

Supreme Court of Alabama

April 17, 1913

Appeal from Circuit Court, Elmore County; W.W. Pearson, Judge.

Ejectment by J.D. Tucker against J.L. Hornsby. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

J.M Holley, of Wetumpka, for appellant.

Frank W. Lull, of Wetumpka, for appellee.

McCLELLAN J.

Statutory ejectment by appellant against appellee.

The parties are coterminous owners. The area in question is a strip of land 35 yards wide, running the length of the N. 1/2 of a subquarter of a quarter section, particularly described of course, in the pleading. In the deeds in the plaintiff's chain of title the strip in dispute was described, if it is in fact within the N. 1/2 of the S.E. 1/4 of the N.W. 1/4 of section 11, township 19, range 21, in Elmore county, Ala.

The defendant's deed from Brooks, his alleged predecessor in right and title, appears not to have been offered in evidence. However, his testimony is to the effect that Brooks conveyed to him more than 20 years ago, and put him in possession of, the S.W. 1/4 of the N.W. 1/4 of section 11, a quarter call describing land immediately west of that conveyed to plaintiff. Defendant further testified that Brooks put him in possession of the strip in question pointing out a line, north and south on the east side of his purchase, which brought the strip in dispute within the stated quarter call of Brooks' deed to defendant.

In the recent case of Walker v. Wyman, considered on two appeals and reported, respectively, in 157 Ala. 478, 47 So. 1011 and in 58 So. 403, legal principles applicable to contests of the character here presented were fully restated as from satisfactory authority in this court. While there were differences of opinion between some of the Justices upon the question of the correct solution of the issues of fact, there were none as to the legal principles so announced. We see no occasion to now reiterate the principles at length. McLester Bldg. Co. v. Upchurch, 60 So. 173.

It seems not to be controverted by the defendant that the strip in dispute is on the east side (plaintiff's side) of the true line dividing the S.E. 1/4 of the N.W. 1/4 of that section from the S.W. 1/4 of the N.W. 1/4 of that section. On the contrary, it appears that one of the litigable questions, under defendant's view, is whether the strip has been so adversely held and possessed for the requisite period by the defendant or his predecessors, or both, as to vest title in him, or was so adversely held and possessed by the defendant in 1901 and 1904, or either, when Freeman conveyed to McKenzie, and McKenzie conveyed to plaintiff, as to render void, as to defendant, either or both of those conveyances. Curtis v. Riddle, 59 So. 47. These are the chief issues of law or fact, or both, discussed in the briefs of counsel.

The court gave the affirmative charge for defendant, upon his request. In this there was error. The question of adverse possession, under either alternative above stated, was, under the evidence before this court, an issue that should have been submitted to the jury.

Since we must remand, we purposely refrain from any other reference to or discussion of the evidence than is absolutely necessary to decision and to point the way for the trial to occur.

While there is evidence of an "old line" dividing the quarter section conveyed to the plaintiff and to the defendant, respectively, there is none tending to show that the respective predecessors in title of plaintiff and defendant agreed upon a line between these 40's and assumed possession in accordance with and in recognition thereof. There is evidence of possession of the strip in dispute (by the witness Dillard at least) by Freeman, in plaintiff's chain of title; and there is evidence of possession of the strip by Brooks or his sister, in defendant's chain of title, and by defendant; that of the latter (defendant) covering many years. So it would seem, as brief for appellee states it, that there is in the case nothing to invoke the application of the rule that an agreed line, followed by possessions in accordance with and in recognition thereof, constitutes and establishes, if maintained for the requisite period, an adverse possession of the areas on either side of such agreed line. Of course, the occupancy, recently assumed, for only a short while by plaintiff did not afford the basis for the application of the rule just stated. We take account of this occupancy later on in the opinion.

It cannot be pronounced, as matter of law, on this evidence that the occupancy (if so) of this strip by Brooks or by Brooks' sister, or by defendant, or by any one or all of them, was with the intention to claim to the "old line," regardless of whether it was the true line or not. Davis v. Caldwell, 107 Ala. 526, 531, 18 So 103; Walker v. Wyman, 157 Ala. 478, 47 So. 1011. That is an important factor in cases where there is no agreed line and possession taken under such an agreement. So far...