McCleod v. Bishop

• Decision Date: 21 May 1896
• Parties: MCCLEOD ET AL. v. BISHOP ET AL.
• Court: Alabama Supreme Court

20 So. 130

110 Ala. 640

MCCLEOD ET AL. v. BISHOP ET AL.

Supreme Court of Alabama

May 21, 1896

Appeal from circuit court, Barbour county; J. M. Carmichael, Judge.

Statutory real action, in the nature of ejectment, by Edward Bishop and others, against William McCleod and others. From a judgment for plaintiffs, defendants appeal. Reversed.

The defendants offered to introduce in evidence an affidavit made by D. H. Bishop, from whom the defendants claim title, on February 20, 1891, and which affidavit was delivered to the defendant William McCleod by said Bishop at the time he delivered the deed to him. This affidavit was to the effect that D. H. Bishop had purchased the lands conveyed to McCleod with his own money, from B. F. Streater, in the year 1852 or 1853, and that the land was his own, and that he had been in the uninterrupted and visible possession of the same since he purchased it from B. F. Streater. Upon the objection of the plaintiffs, the court refused to permit such affidavit to be introduced in evidence, and to this ruling the defendants duly excepted. Upon the introduction of all the evidence, the defendants requested the court to give in writing the following written charges to the jury, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe from the evidence that D. H. Bishop gave the land sued for in for taxes in 1862 1868, and other years, and gave mortgages on said lands in 1879 and other years, and that he sold a part of same tract then they can look to those facts, in connection with all the other evidence in the case, to establish the adverse holding of D. H. Bishop; and, if such adverse holding continued unbroken for twenty years, their verdict must be for the defendant." (2) "If the jury believe from the evidence that D. H. Bishop was in the possession and enjoyment of the land for more than twenty years, claiming it as his own, then the verdict must be for the defendant McCleod."

H. D Clayton and A. H. Merrill, for appellants.

Alston & Peach and Roquemore & White, for appellees.

HEAD J.

Statutory real action by appellees against appellants for 153 acres of land. Plaintiffs claimed as the heirs of Caroline Bishop, who died in May, 1876. The defendants claimed under purchase by William McCleod, in 1891, from D. H. Bishop, who was the husband of said Caroline, and who died during that year or the next having executed a conveyance to McCleod. There was evidence tending to show that Shepherd M. Streater, who was the father of said Caroline, was in possession of the land from 1836 to 1852 or 1853, when said D. H. Bishop and his wife, said Caroline, moved on the land, whereon they continued to reside together until the death of Caroline, in 1876; and thereafter he continued to reside thereon exercising the usual acts of ownership of an absolute owner until his death, though he had some time before, as stated, conveyed to McCleod. It is not questioned by either party that the title of Streater was divested by the possessions. The questions for trial were: To whom should the possession be referred during the occupancy of the husband and wife, and what was the legal character of the husband's possession after the death of the wife, until he sold to McCleod? A witness for plaintiffs testified that "in 1856 and 1857, before and after that time, he heard D. H. Bishop say that said land belonged to his wife." The plaintiffs then asked the witness if he heard said Caroline, while she was residing (together with her husband) on the land, make any declarations to the effect that her father had given said...