Jackson Lumber Co. v. McCreary

• Decision Date: 18 June 1903
• Citation: 137 Ala. 278,34 So. 850
• Parties: JACKSON LUMBER CO. v. MCCREARY ET AL.
• Court: Alabama Supreme Court

34 So. 850

137 Ala. 278

JACKSON LUMBER CO. v. MCCREARY ET AL.

Supreme Court of Alabama

June 18, 1903

Appeal from Circuit Court, Covington County; John P. Hubbord, Judge.

Ejectment by Ida McCreary, John Findley, James Findley, and George Findley against the Jackson Lumber Company, to recover lands specifically described in the complaint. Judgment for plaintiffs. Defendant appeals. Reversed.

Among the charges requested by defendant, to the refusal of the court to give each of which it separately excepted, was the general affirmative charge in its behalf.

B. H Lewis, for appellant.

Jas. F Jones, for appellees.

HARALSON J.

The plaintiffs claim title to the land in question as derived from W. F. Donaldson, but failed to show title in him. Donaldson testified, that he bought it once from his uncle, a man named Donaldson, who was in possession. He testified on his direct examination that in 1874, witness made a deed to the land to A. F. Jackson. Jackson, as shown, made a deed on the 26th December, 1882, to John Findley, the ancestor of plaintiffs, and through whom they claim. On the cross-examination of this witness he testified, that he did not know who was in possession of the land from 1863 to 1872 when he bought--in the latter year; that the land was wild land at that time; that the person he bought from, (his uncle), went over the land and showed it to him; that when he sold it to Jackson in 1874, he took him over it and showed it to him; that he did not know that Jackson was ever on the land after 1874; that Jackson went a way to Crenshaw county and has never returned, that witness knew of, and that all the possession the witness ever had of the land was to buy and sell it.

G. W. Kierce, a witness for plaintiffs, testified, that he had known the land for 17 years, and it was wild land, now; that there had been a house and a patch on it at one time, but that these had gone down and there was nothing remaining of these improvements except a little old field; that he knew John Findley in his lifetime, who claimed the land and asked witness to look after it and keep off trespassers; that witness went on it two or three times to look after it for Findley; that if Findley was ever actually on the land, witness did not know of it, and the only act of his possession was to get witness to look after it and keep off trespassers.

John Findley, a son of the ancestor of plaintiffs, testified, that his father paid taxes on the land until he died in 1888, and he could not say who was in possession from 1868 to 1888, or before that time.

Mary McGuirk for the defendant testified, that she lived on the land in suit in 1863; that H. B. McGuirk, her husband, lived with her on the place till the latter part of the war when he went into the service and died; that S. K. and C. B. Segler, whom she knew, executed a deed to her said husband to said land, on the 6th of September, 1863, and the same has been in her possession ever since, until she turned it over to the defendant company, about 1892, and that she was in possession from 1863, until the latter date. This deed was introduced in evidence, as was also a deed to the land from the widow and heirs of said H. B. McGuirk, deceased, to David McGuirk, dated the 7th December, 1891; and a deed from David McGuirk to the defendant company, of 3d October, 1892.

The defendant also introduced several witnesses who testified to substantially the same facts as were deposed to by Mary McGuirk; that the lands had been in the possession of the McGuirks since 1863, claiming them as their own, until they were sold to defendant in 1892; that they never knew or heard of Donaldson, Jackson or Findley claiming the lands, until about the time this suit was brought. There was...