Hoyle v. Mann

• Decision Date: 30 June 1905
• Citation: 41 So. 835,144 Ala. 516
• Parties: HOYLE v. MANN.
• Court: Alabama Supreme Court

41 So. 835

144 Ala. 516

HOYLE v. MANN.

Supreme Court of Alabama

June 30, 1905

Appeal from Circuit Court, Baldwin County; W. S. Anderson, Judge.

"To be officially reported."

Ejectment by Shuah S. Mann against George H. Hoyle. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Gregory L. & H. T. Smith, for appellant.

Joel Goldsby and James E. Webb, for appellee.

SIMPSON J.

This is an action of ejectment by appellee (plaintiff) against appellant (defendant). The plaintiff introduces: First. A deed from Louisa Burthe (dated October 31, 1881), who describes herself as the widow of Edmund Burthe, of New Orleans, La., and she conveys, individually and as tutrix of her five children, who are named, and in this deed Henry Chiapella "intervenes" and conveys his one-sixth (1/6) interest. This deed is made to Osceola Wilson. Second. A deed from Osceola Wilson and wife to John Bowen, November 8, 1881. Third. A deed from Charles Torrey, as executor of the will of John Bowen, to the plaintiff, dated December 4 1906. The defendant introduced a deed from certain parties who are shown to be the heirs at law of said Edmund Burthe to the defendant, dated June 3, 1902, and it was proven that said widow of Edmund Burthe died March 11, 1891. The defendant, after receiving said deed, placed a fence around the land sued for. The plaintiff claims that Wilson went into possession in 1881, and that such possession has been kept up until the defendant placed his fence around the land.

1. The appellant insists that the court should have sustained his motion to exclude all of the evidence of the plaintiff, on the ground that it did not make out a prima facie case, and, failing in that, the court should have given the general charge in favor of the defendant. This is based, in part, upon the theory that both plaintiff and defendant claimed from a common source, that defendant has shown a perfect title back to that common source, and that the plaintiff has not shown such actual, open, notorious, and continuous adverse possession as will overcome the perfect title from the common source, and present possession. A sufficient answer to this is that they do not claim entirely from the common source, as one-sixth interest was conveyed to Wilson by Henry Chiapella, who is not shown to claim from Edmund Burthe at all. So that, as to that one-sixth interest, neither party had any thing, more than color of title, on which to base a possessory interest. But, in addition to this, after a careful examination of the mass of testimony, we think that the matter as to whether such possession was shown by the plaintiff as to justify a recovery was for the jury to decide under proper instructions from the court.

2. There was no error in allowing the correction of the clerical error in the abstract, which was really apparent on its face. If it had been in a matter which worked a surprise on the defendant, the court would, on motion, have given him proper relief.

3. There is no force in the objection to the introduction of the deed of Charles Torrey, as executor of Bowen, to Mann. The first objection, to wit, that it did not appear that the grantor had any title to the land, would not go to the introduction of the deed, if it was otherwise unobjectionable, and in this case the deeds were introduced only as color of title. With regard to the statement of the deed in the abstract, the only purpose of section 1531, of the Code of 1896, is to give notice to the opposing party what line of title will be relied upon, and the statement in this case was sufficient. If the defendant was not satisfied with the abstract, and thought it should be fuller, he should have objected to it before going into trial. The definitions of an abstract, as used in conveyancing, do not apply to this statute.

4. What has been said applies also to the assignments in regard to the admission of the deed from Osceola Wilson and wife to John Bowen; also, to the admission of proof of possession after 1892.

5. The statement of the witness Bromberg, that he had "sold those lands," referring to the lands covered by the plat, should have been excluded on motion of defendant, as it was irrelevant, and although, as suggested by counsel for plaintiff, it may be that it had no effect upon the minds of the jury, yet this court cannot undertake to affirm that proposition.

6. The court erred in refusing to exclude the testimony of John W. Stewart in regard to Mrs. McGill finally buying from Bowen the land upon which she was residing. The testimony of the witness is simply that this land was a part of the land claimed by Torrey. It is not shown that it was any part of the land in controversy, or even contiguous to it, or that it was a part of a contiguous tract of land covered by the color of title, of which the land in controversy was a part. It does not come within the principle decided in the case of Stiff v. Cobb et al., 126 Ala. 381, 28 So. 402, 85 Am. St. Rep. 38, where the defendant's vendor was distinctly in possession of a "single connected block," and the defendant was allowed to show that said vendor, while so in possession, sold one lot out of the block and made a mortgage on the lot in controversy. For the same reason the question to the same witness, "Did anybody living on the land at the time pay you $50 for it, as the agent of Mr. Bowen?" should have been excluded, and also the further question as to whether various persons who had bought lands from Bowen had been disturbed.

7. The question to the witness Chiapella as to whether the defendant said anything to him about these lands, and other questions to him, including the one as to when the Burthe heirs learned that the lands in Alabama had been sold by their mother, were irrelevant and should have been excluded. In the trial of

the issue before the court in this case, it was simply a question of title by deed or adverse possession, and it was not material how or by what means the defendant induced the heirs of Burthe to convey their interest to him.

8. Plaintiff's objection to defendant's questions to the witness Chiapella as to whether Mrs. Burthe claimed to have acquired title by inheritance from her husband, and that she had no other title, etc., were properly sustained by the court. A chain of title cannot be proved by hearsay testimony as to what a person did or did not claim. Also, the abstract of complainant in this case shows that he claims entirely on adverse possession, simply based on Mrs. Burthe's deed as color of title, without regard to any right, title, and claim which she had, and the defendant could not force the plaintiff back to a common source, in order to strengthen his own title.

9. The only objection made to the question to the witness George Hoyle, asking for the contents of his second proposition to Chiapella, was that it was incompetent to prove by parol the contents of a written instrument. This objection was not well taken....