Mahan v. Smith
| Decision Date | 13 June 1907 |
| Citation | 44 So. 375,151 Ala. 482 |
| Parties | MAHAN v. SMITH. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Chilton County; A. H. Alston, Judge.
Ejectment by Henry M. Mahan against Rose Smith. From a judgment for defendant, plaintiff appeals. Affirmed.
A. C Smith and J. O. Middleton, for appellant.
Tipton Mullins, for appellee.
Motion was made in the court below for a new trial, which was overruled. The citation of appeal shows that the appeal here was taken from the judgment on the main trial of November 30 1906. The appeal was properly sued out. Henry v Couch, 132 Ala. 570, 31 So. 463. The contention therefore, of counsel for appellee as to irregularity in taking the appeal, is without merit.
The court in term time, on December 5, 1906, made an order allowing the plaintiff 30 days from date for preparing and tendering his bill of exceptions, and subsequently in vacation the judge who presided at the trial, and within the time previously granted by order of the court, by second order in writing further extended the time. These orders, as they should be, are set out and shown in the transcript as a part of the record proper. The bill of exceptions was signed within the time fixed by the second order, and the motion to strike must therefore be overruled.
The refusal of the general charge requested in writing by the plaintiff, and the giving of a similar charge requested by the defendant, constitute the grounds of error complained of; and this question has been by the bill of exceptions duly reserved, both as to the main trial and on the motion for a new trial. The suit is a statutory ejectment. The case was tried on issue joined on the plea of not guilty. The plaintiff relied on paper title. The evidence was without dispute. The court gave the general charge for the defendant. The plaintiff introduced in evidence a deed to the land from Joseph Smith, executed December 31, 1901, to V. O. Campbell; also a deed from V. O. Campbell to the plaintiff, executed December 9, 1902. The plaintiff then proved by one J. W. Edwards, a witness sworn in behalf of plaintiff, that Joseph Smith was in possession of the land at the time of the execution of the deed to Campbell. On the cross-examination of this witness, defendant's counsel asked the witness the following question: "Wasn't Joseph Smith, during the year 1902, in open, notorious, and adverse possession of the land sued for claiming it as his own?" To which question the witness answered: "He was." This was all the evidence in the case.
In ejectment the general rule is that plaintiff must recover, if at all, on the strength of his own, and not the weakness of the title of his adversary. 3 Mayfield's Dig. p. 119, § 46. The rule seems to be established that the grantor, remaining in possession of the land, may become an adverse holder as against his grantee, and may by such adverse possession for the necessary period acquire title. And the rule seems further to be settled that the doctrine of estoppel against a vendor cannot be invoked as to a subsequently acquired title by adverse possession. Abbett v. Page, 92 Ala. 571, 9 So. 332; Yancey v. Savannah & Western Railroad Co., 101 Ala. 234, 13 So. 311; Doolittle v. Robertson, 109 Ala. 412, 19 So. 851. A conveyance of land which, at the time of the execution of the deed, is in the possession of one holding adversely to the grantor, and exercising acts of ownership, and claiming to be in rightful possession, though having no color of title, is void as to the person holding adversely, and will not support an action of ejectment by the grantee against such adverse holder. Bernstein v. Humes, 60 Ala. 582, 31 Am. Rep. 52; Sharp v. Robertson, 76 Ala. 343; Murray v. Hoyle, 92 Ala. 559, 9 So. 368.
In the present case it does not appear that the adverse possession and claim of ownership was under color of title, nor does it appear, if without color of title, that any claim in writing had been filed in the office of the probate judge, asserting such adverse possession, as required by the statute. Section 1541 of the Code of 1896. Nor do we think this a material question in the case before us, as we understand and construe the...
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