Lewis v. Johnson

• Citation: 206 Ala. 156,89 So. 447
• Decision Date: 02 June 1921
• Docket Number: 2 Div. 604
• Parties: LEWIS v. JOHNSON.
• Court: Supreme Court of Alabama

89 So. 447

206 Ala. 156

LEWIS v. JOHNSON.

2 Div. 604

Supreme Court of Alabama

June 2, 1921

Appeal from Circuit Court, Greene County; Henry B. Foster, Judge.

Statutory ejectment by Miss C.A. Lewis against William D. Johnson. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

R.B Evins, of Greensboro, Edward De Graffenried, of Tuscaloosa and William Hawkins, of Eutaw, for appellant.

Harwood McKinly, McQueen & Aldridge, of Eutaw, for appellee.

SOMERVILLE J.

The action is in statutory ejectment, and the complaint is in two counts. There is no controversy as to the respective paper titles of the parties, except as to the identity of the excepted five acres referred to in the first count, but plaintiff claims by adverse possession certain parts of the land deeded to defendant, which adjoins plaintiff's land on its western side.

Under the first count plaintiff expressly excepts from the tract therein sued for "five acres off the northwest corner thereof." This exception follows the exception set forth in the deed of conveyance under which she claims. On the other hand, defendant's deed, coming from the common source of title, conveys to him "five acres in the northwest corner" of the subdivision in question. The evidence shows that defendant took possession of a narrow, irregularly shaped tract of five or six acres in said northwest corner, lying west of an old fence row, claiming it under his said deed, and that plaintiff has never claimed that five-acre tract.

Under the first count, therefore, plaintiff having disclaimed as to all of the tract sued for, except the five acres as to which his title is undisputed, and never having been in possession of the disclaimed portion, plaintiff was not entitled to recover, and the general affirmative charge might have been well given for defendant.

It is of course true that the description, "five acres off the northwest corner" of a specified tract, is ordinarily to be construed as meaning a square block in the corner, of that area. Daniels v. Williams, 177 Ala. 140, 58 So. 419. But where, as here, the excepted acreage is marked on the ground by visible boundaries, known to and acquiesced in by the parties, each of whom claims and occupies only up to the dividing line so marked and understood, and such claim and occupation are extended to a period of ten years, the title of each will be fixed and limited by the boundary line thus actually adopted. This, as we understand the evidence, was the status arrived at between the plaintiff and her grantor who excepted this five acres in actual possession, and afterwards sold it by actual delivery of possession to de...