McCreary v. Jackson Lumber Co.

• Decision Date: 05 June 1906
• Citation: 41 So. 822,148 Ala. 247
• Parties: MCCREARY ET AL. v. JACKSON LUMBER CO.
• Court: Alabama Supreme Court

41 So. 822

148 Ala. 247

MCCREARY ET AL. v. JACKSON LUMBER CO.

Supreme Court of Alabama

June 5, 1906

Rehearing Denied June 30, 1906.

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

"To be officially reported."

Ejectment by Ida McCreary and others against the Jackson Lumber Company. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

James F. Jones, for appellants.

B. H Lewis, for appellee.

ANDERSON J.

When this case was here before, the court reiterated the doctrine so often laid down by the courts of the land, "that a plaintiff in ejectment must recover upon the strength of his own title and must show a valid title in himself, whether the defendant's title be valid or not; and, the defendant being in possession, the plaintiff cannot recover against him without showing a better muniment of title to the land than his or that he has acquired title by adverse possession." Jackson Lumber Co. v. McCreary, 137 Ala. 278, 34 So. 850. Upon the former appeal this court held that the defendant was entitled to the general affirmative charge because the plaintiff had shown no legal title, and that the evidence also failed to show sufficiently clear the possession of any one under whom they claimed to hold.

There was no evidence as to the possession of Donaldson. 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 Findley 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 Findley, the ancestor of the plaintiffs. If he was, the plaintiffs made out a prima facie case. The defendant claims under the McGuirks, and Mrs McGuirk testified that "they lived upon the land and were in actual possession from 1861 to the fall of 1865; that she then left and never returned to the land until 1890 (25 years afterwards), when she resided on it for 2 years, and then sold it to the defendant." The McGuirks went into the possession of said property in 1861 under a deed, and it is undisputed that they had an older actual possession. It is settled law that, "when neither party has the true title, the older possession gives the better right, and such right is not defeated by a subsequent entry and occupation by the opposing claimant until it ripens into a title by adverse possession." 3 Mayfield's Dig. p. 122, § 94, and cases there cited. The rule is also settled that one claiming by prior possession under color of title cannot recover where the evidence fails to show continuous possession to the time of dispossession by the defendant, or an animus revertandi. Newell on Ejectment, 364; Smoot v. Lecatt, 1 Stew. 590; Sabariego v. Maverick, 124 U.S. 261, 8 S.Ct. 461, 31 L.Ed. 430. Mrs. McGuirk having abandoned the land for 25 years, there was evidently no animus revertandi; and her deed from the Seglers was not recorded until the year 1890, so there was nothing to put Jackson on notice that she had an adverse claim of possession when he bought the land from Donaldson in 1874, or when it was sold to Findley in 1882. Therefore, if the plaintiffs acquired a prior possession through their grantors, they would be entitled to recover as against a mere trespasser on the land or one claiming only under a later possession. "And according to the prevailing rule the plaintiff's right of recovery in such case cannot be resisted by showing that there is or may be an outstanding title in another." 10 Am. & Eng. Ency. Law, 487; Green v. Jordan, 83 Ala. 220, 3 So. 317, 3 Am. St. Rep. 711; Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776.

The foregoing rule does not prevail where the defendant has acquired the possession peaceably and in good faith under color of title. 10 Am. & Eng. Ency. Law, 488, and cases there cited; Doe ex dem. v. Edmondson (Ala.) 40 So. 505; Wilson v. Glenn, 68 Ala. 383. In the case at bar the defendant proved color of title and a bona fide purchase from those...