De Jarnette v. McDaniel

• Decision Date: 24 June 1891
• Citation: 93 Ala. 215,9 So. 570
• Parties: DE JARNETTE ET AL. v. MCDANIEL ET AL.
• Court: Alabama Supreme Court

9 So. 570

93 Ala. 215

DE JARNETTE ET AL. v. MCDANIEL ET AL.

Supreme Court of Alabama

June 24, 1891

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

This was a statutory action of ejectment, brought by the appellants against the appellees to recover the possession of certain lands specifically described in the complaint, and was commenced on April 26, 1884. The plaintiffs rested their claim to the lands in controversy upon the fact of being the heirs at law of Elias M. De Jarnette. The defendants claim title under a mortgage executed on May 16, 1859, by Mrs Dicey M. De Jarnette and Permelia A. Jones to Richard A Hudson. Upon the introduction of all the evidence the plaintiffs requested the court to give among others, the following written charges: (3) "In determining whether or not the notoriety of an adverse possession was such as to afford prima facie evidence that it was known to the owner, it is proper to consider the distance of the owner from the place at which such adverse possession was set up." (5) "When the title is shown not to attend possession, the law, not favoring wrong, will not presume that the possession was taken or is held in hostility to the true title." (7) "A possession in its inception permissive can become adverse only by a clear, positive continuous disclaimer and disavowal of the title of him, from whom it was delivered, and the assertion of a hostile title brought to his knowledge." (8) "When the owner of lands resides in another state, and a great distance from the place where an adverse possession is set up, greater notoriety to the adverse character of such possession is required to affect the owner with notice than is required when such owner resides near to the place where such possession is set up." The court refused to give each of the charges as requested by the plaintiffs, whereupon the plaintiffs separately excepted to the refusal of the court to give each of the charges as asked, and also separately excepted to the court's giving the following written charges requested by defendants: (6) "That if the jury believe from the evidence that the witness Mary Holmes was put into possession of the land in controversy by R. A. Jones in 1865, and that she remained in possession of said land until the fall of 1866, when she, with the knowledge of the said R. A. Jones, began to pay Richard Hudson rent for the land under the mortgage introduced as evidence by the defendants, and that thereafter, with the knowledge of said R. A. Jones, she remained in the possession of said land, or any part thereof, as the tenant of Richard Hudson, until the death of said Hudson, and thereafter as the tenant of his widow, as the administratrix of said Hudson, until some time in 1875, and that then one Miller rented or leased the land from Mrs. Hudson, as such administratrix, for five years, and that he went into possession of said land under such lease or any part thereof, and held the property thereof, living on and controlling said land, or any part thereof, by himself, or through a tenant of himself, for five years, and that Hudson claimed the ownership of said land under said mortgage or said foreclosure sale up to his death, and that his widow and heirs, after his death, claimed to own said land under such mortgage or foreclosure sale until they sold to defendant John T. Milner, and that said R. A. Jones wrote a letter to said plaintiffs in the fall of 1886, informing them that Hudson was in possession and claiming said land under said mortgage, and mailed said letter, prepaying the postage thereon, addressed to plaintiffs [at] their proper post office, then I charge you that your verdict must be for the defendants." (7) "That if the jury believe from the evidence that Hudson, in the fall of 1886, took possession of said land in controversy, or any part thereof, by himself or through a tenant, claiming ownership thereof under the mortgage introduced in evidence by the defendants, and that R. A. Jones wrote a letter to plaintiffs informing them of the facts and of said claim of ownership by Hudson under said mortgage, and placed said letter in the post-office, prepaying the postage thereon, addressed to plaintiffs, then I charge you that such possession and claim of ownership was hostile and adverse to plaintiffs, and, if it continued without interruption for ten years or more, would ripen into and vest the title to said lands in Hudson and his heirs, and defeat the title of plaintiffs." (10) "That if you believe from the evidence that R. A. Jones put the negro woman Mary Holmes in possession of the land in controversy, and not the plaintiffs, then I charge you there is no evidence that R. A. Jones was acting as the agent of plaintiffs; and I further charge you that, if you so believe from the testimony that she (Mary Holmes) went into possession of the land by the permission or request of R. A. Jones only, said Mary Holmes was not the tenant or agent of the plaintiffs." (13) "If the jury believe from the evidence that Mary Holmes went into possession of the lands in controversy merely by permission of Richard A. Jones, and not by the authority and direction of the plaintiffs, then you must find for the defendants." (14) "The jury may and should look to the fact that there was a practicable way of communication between the plaintiffs and their kinsmen and friends living near the lands, in considering whether or not plaintiffs ought to have known of Hudson's claim to the lands, and his claim of possession through Mary Holmes." There was judgment for the defendants, and the plaintiffs bring this appeal, and assign the rulings of the lower court as error.

Smith & Lowe, for appellants.

James Weatherly, Hewitt, Walker & Porter, and James J. Garett, for appellees.

STONE C.J.

The chief defense in this case is the statute of limitations of 10 years, or that the defendants, and those from whom they derived their possession, had been in continuous, adverse possession of the land sued for, for more than 10 years before this suit was brought, April 26, 1884. Parts of the lands, however, have been all the while woodland, of which there was only such possession as partial occupancy under title draws to it. It thus became necessary to put in evidence the title under which their possession had its inception. This consisted of a mortgage of the land made by Mrs. Dicey M. De Jarnette, grandmother of plaintiffs, and another executed to Hudson in May, 1859. This mortgage describes the land by section, township, and range, but gives no other description. In what county, state, survey, or land-district the lands lie is not attempted to be shown in the mortgage. The plaintiff objected to the introduction of the mortgage in evidence on the ground of uncertainty and ambiguity in the description. It was then proved that at the time the mortgage was executed, and for several years before that time, Mrs. Dicey De Jarnette lived on the land; that she and her son lived together upon it until his death, in 1854 and that she owned no other lands. This brought the question directly within the rule declared in Chambers v. Ringstaff, 69 Ala. 140. The circuit court did not err in receiving the mortgage deed in evidence. Black v. Railroad Co., 9 South. Rep.537. Plaintiffs in this suit are children and heirs at law of Elias M. De Jarnette, who was a son of Dicey M. De Jarnette. As we have stated, he died in 1854. About two years afterwards his widow and all his children removed from the lands to the state of Mississippi, and have ever since resided there. They have had no possession since that time,-say, about 28 years, when this suit was brought,-unless what is stated further on was possession. The oldest of the children, plaintiffs in this suit, became 21 years old June 9, 1864, 20 years before the present action was commenced. Their title is a deed from Dicey M. De Jarnette to the said Elias M., dated in 1853, in which she reserved to herself the use of the land during her life. When the family of Elias M., after his death, removed from the land, and to the state of Mississippi, Mrs. Dicey M. De Jarnette was in possession, and continued to occupy the land until early in the year 1862, when she removed from it, and during the spring or summer of that year died. There is no testimony...