Lyons v. Taylor

• Citation: 231 Ala. 600,166 So. 15
• Decision Date: 30 January 1936
• Docket Number: 1 Div. 857
• Court: Supreme Court of Alabama
• Parties: LYONS v. TAYLOR et al.

166 So. 15

231 Ala. 600

LYONS v. TAYLOR et al.

1 Div. 857

Supreme Court of Alabama

January 30, 1936

Rehearing Denied March 5, 1936

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action in nature of ejectment by R.V. Taylor and others against Charles M. Lyons. From a judgment for plaintiffs, defendant appeals.

Affirmed.

THOMAS J., dissenting in part.

Geo. W McRae and Wm. J. Young, both of Mobile, for appellant.

Gordon Edington & Leigh, of Mobile, for appellees.

THOMAS Justice.

This is the second appeal in a statutory action in the nature of ejectment. Lyons v. Taylor et al., 222 Ala. 269, 132 So. 171.

The defendant invokes the provisions of sections 7460-7463 of the Code as to improvements placed upon the lands, having three years' adverse possession next before the suit was brought.

The case was submitted to a jury and resulted in verdict and judgment in favor of the plaintiffs.

The premises in question are situated on the south side of "the new road" that runs east and west on the line between sections 12 and 13, township 8, south of range 2 west. The Lyons residence is on the north side, and the store and dwelling, the mulberry tree, oak trees, and goat shed, referred to by witness, are on the south side of the public road within the inclosure of defendant and upon the lands involved in this suit. The evidence shows that the land south of the road was a part of the premises occupied and claimed by Harry Williams and his daughter, Mary B. Lyons, the grantor of defendant, and that they made such use of the lands as they were susceptible.

Defendant claims the property under a conveyance by his mother, Mary B. Lyons, of date of September 21, 1927, and was occupying the same thereunder when suit brought and at the time of the trial. Mrs. Lyons claimed title by an asserted adverse possession on her part for forty years or more (before the conveyance to her son), by inheritance from her father, Harry Williams, who was in actual occupancy, to the date of his death in 1879 or 1880, under purchase from McCurry about the year 1868. No conveyance or color of title from McCurry to Harry Williams was adduced in evidence. There was evidence, however, that said Williams purchased the lands from McCurry, immediately went into possession claiming as such purchaser, and lived on the property to the time of his death, and that possession was continued by his daughter, Mrs. Lyons; that the premises for which the suit was brought were within the curtilage of the old "McCurry Home" and the "Williams Home"; that Mrs. Lyons occupied and used the premises by an open, actual, and continuous possession until conveyance to her son, the defendant, Charles M. Lyons, in 1927; that she had the premises inclosed by a fence when the county constructed the new road which divided the premises. That is to say, the appellant-defendant insists that the great weight of the evidence "establishes an actual, continuous, open, notorious, adverse possession and user of the premises *** by the defendant, his mother, and grandfather, for more than sixty-seven years."

The trial court, on motion of defendant, having excluded certain deeds as muniments of title, permitted them to be given in evidence as "color of title" (Lyons v. Taylor, et al., 222 Ala. 269, 132 So. 171; Dorlan v. Westervitch, 140 Ala. 283, 37 So. 382, 103 Am.St.Rep. 35; Gist v. Beaumont, 104 Ala. 347, 16 So. 20) to the tract of about 1,500 acres "called the Kuppersmith tract." Plaintiffs insist that these evidences of color of title embrace defendant's store and dwelling; that predecessors in the claim of plaintiffs exercised acts of ownership over portions of the 1,500-tract by leasing and by granting rights to take oysters from the waters of the bay adjoining the lower part of the 1,500-acre tract.

There are well-established rules governing such actions:

The plaintiffs must recover on the strength of their own title and not upon the weakness of the title of the adversary. Gerald et al. v. Hayes et al., 205 Ala. 105, 87 So. 351; Smith v. Bachus et al., 195 Ala. 8, 70 So. 261; Wilson v. Glenn, 68 Ala. 383; Farley, Spear & Co. v. Whitehead, 63 Ala. 295; Brock et al. v. Yongue et al., 4 Ala. 584.

Actions of ejectment, or those in the nature thereof, are determinable upon the legal, and not the equitable, title. Caldwell v. Parmer's Adm'r, 56 Ala. 405; Clarady et al. v. Abraham, 174 Ala. 130, 56 So. 720; Lawrence v. Williams, 179 Ala. 596, 60 So. 889.

A conveyance by a grantor before the adoption of section 3839 of the Code of 1907 (Code 1923, § 7453) is void, unless his grantor was in the actual possession of the land sued for at the time the conveyance was made or that at such time there was no adverse claimant in possession. In Gerald et al. v. Hayes et al., 205 Ala. 105, 106, 87 So. 351, it was observed that, prior to the adoption of section 3839 of the Code of 1907, a conveyance of land in the possession of an adverse holder claiming to be in rightful possession thereof, though without color of title, is void as against the adverse holder of such premises. And Smith v. Steiner & Lobman, 172 Ala. 79, 55 So. 606, contains the statement that color of title to a larger tract of land, with actual possession of only a part is insufficient to entitle a plaintiff to recover in ejectment that part of the land not actually possessed.

It is further established that the recitals of an ancient deed (free from suspicion) are prima facie evidence of the recited facts, and that the identity of names is likewise prima facie evidence of persons named in the conveyance. In such cases these questions are for the jury. McMillan v. Aiken et al., 205 Ala. 35, 42, 88 So. 135; Reichert v. Jerome H. Sheip, Inc., et al., 204 Ala. 86, 85 So. 267.

We have indicated that many of the ancient documents offered by plaintiffs were excluded on motion of defendant as muniments of title, but allowed in evidence for the purpose of showing color of title and the extent of a constructive holding thereunder.

The court admitted the deed from Madame Constance Cook, recited to be the legitimate daughter of Lewis F. Baudin, the son of Nicholas Baudin, of date of February 3, 1830, conveying an undivided eighth interest in L'Isle Mon Louis containing "about 14,360 arpens." The measure of land thus employed as stated in acres was defined in McMillan v. Aiken et al., 205 Ala. 35, 88 So. 135.

The deed from Andrew J. Hodge, Asa Holt, Mary E. Files and husband, and David J. Files, to Frederick Kuppersmith, of date of May 23, 1873, and duly recorded, purported to convey the southeast extremity of Mon Louis Island, containing 1,400 acres, and recited as the tract "heretofore claimed by the Mobile and Cedar Point Railroad Company, being the same undivided half interest conveyed to the said Asa Holt by Thomas S. Bates on the 10th day of July 1861." There was objection to this deed by the defendant, and motion to exclude on the ground that "it was not shown by the plaintiffs that the grantors named in the deed were in possession of the land therein described at the time it was executed, but, on the contrary, there was evidence that the land was in possession of other parties" at such time. The court overruled defendant's objection and motion to exclude. In this there was no error, as the conveyance was competent evidence of color of title; and exceptions were duly reserved by defendant without avail.

As we understand this evidence, the plaintiffs have failed to establish that the aforesaid grantors, or any one of them, were in the actual possession of the small tract of land in question at the time of the conveyances above noted, but that such lands were in the actual possession of one Williams, who established his homestead thereon; that said Williams was an ancestor of the defendant, and he was let into possession of these lands sued for in the year 1868 by his purchase of the lands or the improvements thereon from McCurry. In these rulings there was no error; the conveyances were good as color of title; the objections and motions were to exclude the instruments as evidence and not to limit as against the instruments as muniments of title.

The same objections and exceptions made to the introduction in evidence of the other deeds were made to the deed by the heirs of Thomas S. Bates to Frederick Kuppersmith of date of May 26, 1873, conveying an undivided one-half interest in said lands, and the further ground of objection that there was no proof of the fact of "who constituted the heirs of Thomas S. Bates, deceased." The ancient document recited that the grantors were the "heirs at law of Thomas S. Bates, late of Mobile County, Alabama, and that they have remised, released, sold and quit-claimed" to Frederick Kuppersmith "all the right, title and interest which they possess and is vested in them as legal representatives and heirs at law of Thomas S. Bates, late of Mobile County, Alabama, deceased." This recital in that ancient document was prima facie sufficient to indicate the heirship of the grantors. There was no error in admitting the Bates document under the several recitals of facts contained therein. McMillan v. Aiken et al., supra.

Plaintiffs' title is shown to further consist of a deed from Frederick Kuppersmith and wife to Adam Glass in 1898; that from Adam Glass and wife to Frederick Kuppersmith in 1898; that from Kuppersmith and wife to Charles S. Clarke, R.V. Taylor, Henry Tacon, and James Grey Thomas of date of September 10, 1898 that of Henry Tacon and wife to R.V. Taylor of date of November 30, 1914; the will of J.G. Thomas to his wife, Hattie E. Thomas; the will of the latter devising her lands to her son, James Grey Thomas, describing them as her "shares in the oyster lands...