McCreary v. Jackson Lumber Co.

• Decision Date: 26 February 1910
• Parties: MCCREARY ET AL. v. JACKSON LUMBER CO.
• Court: Alabama Supreme Court

53 So. 103

168 Ala. 208

MCCREARY ET AL. v. JACKSON LUMBER CO.

Supreme Court of Alabama

February 26, 1910

Rehearing Denied June 30, 1910.

Appeal from Circuit Court, Covington County; H. A. Pearce, Judge.

Action by Ida McCreary and others against the Jackson Lumber Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

James F. Jones and J. M. Chilton, for appellants.

W. O Mulkey, for appellee.

MAYFIELD J.

This is the third appeal in this case. See former decisions: 137 Ala 278, 34 So. 850; 148 Ala. 247, 41 So. 822. The former opinions sufficiently state the facts necessary to an understanding of the questions for decision on this appeal. The case was reversed, on the first appeal, on the ground that the general affirmative charge should have been given in favor of the defendant.

On the second trial, the trial court gave the affirmative charge for defendant, and on the second appeal the case was reversed, on the sole ground of additional testimony of a witness named Morrow. The ground of reversal was stated in that opinion (148 Ala. 250, 41 So. 823), as follows: "One Morrow does testify that 'A. F. Jackson owned and was in possession of said N.E. 1/4 of section 36, township 1, range 18, from the time he bought it from W. F. Donaldson until he sold it to John Finley, about the year 1882,' a period of eight years. It is true that the witness, in detailing the possessory acts of Jackson, did not enumerate sufficient acts to show actual possession; but he nowhere stated that these were the only possessory acts, and, having previously testified to the collective fact that Jackson was in possession, it became a question for the determination of the jury as to whether Jackson was in the actual possession of the land when he conveyed it to Finley, the ancestor of the plaintiffs. If he was, the plaintiffs made out a prima facie case."

The witness Morrow was examined on interrogatories on the second trial; but on this trial he was examined ore tenus, and testified fully on the direct examination, and on cross and rebuttal. This examination was evidently for the purpose of seeing if his testimony, in connection with the other, would make out a prima facie case under the former decisions. His testimony on this trial was as follows: "I knew A. F Jackson in his lifetime. I knew him from the time I could first recollect. My father gave me to him when I was about 9 months old, and I lived with him until I was 21 years old. He was my uncle. I lived with him when he resided in Crenshaw county. I remember his buying some land from a man named Donaldson. I went on this piece of land with Mr. Jackson once, one time. We got there one evening, and left the next day evening. We just went on the land, and walked over it a little. We did not look out any lines, not in particular. We traced one line, and we remained there on the land one day."

Plaintiffs here asked the witness the following question: "Did you hear Mr. Jackson say that that land was his, while you were there on it?" Defendant objected to this question, and to the witness answering it, which objection was sustained by the court, and to this ruling of the court plaintiffs duly and legally excepted.

Witness further testified: "I don't remember what part of the county it was where we went to that land. I think it was near Natural Bridges. We were living at the Atkins old mill at that time. I don't remember how far it was from this land. I don't remember what section it was. I don't remember that it was section 36. There was one little house on it, and about two acres cleared around it. Mr. Jackson in my presence employed a man by the name of Williams to look after the land for him, to keep trespassers off of it. That was the land he bought from Mr. Donaldson. I don't remember Mr. Williams' given name. We lived about two years at the place we were living when we went on the land, two years in Covington county. We went from there to Coffee county, and from Coffee county we went back to Covington county, to a place near Loango. I remember that Mr. Jackson sold the land to Mr. Finley, Mr. John Finley. He was the father of plaintiffs. I don't know that Mr. Jackson ever done anything more after that time. That was timber land. It was all timber, except the little patch on it--pine timber. It was valuable principally for the timber that was growing on it. In the condition the land was in at that time, it could not have been put to any other use than to keep trespassers off of it, and still preserve the timber on it."

On cross-examination this witness continued his testimony as follows: "The land I have been speaking of would have been good for farming, if it had been cleared up. I mean to say that it was timbered land at that time. I don't remember what time it was that me and Mr. Jackson went over this land. At that time Mr. Jackson lived near the Atkins old mill on the river. That was 10 or 12 miles northeast of this place, towards Rose Hill. I only went over there with Jackson one time. I never knew of Jackson going but one time. He said he was going; but I don't know. I could not tell. I don't know whether it...