McInerny v. Irvin

• Decision Date: 22 May 1890
• Citation: 90 Ala. 275,7 So. 841
• Parties: MCINERNY v. IRVIN.
• Court: Alabama Supreme Court

7 So. 841

90 Ala. 275

MCINERNY v. IRVIN.

Supreme Court of Alabama

May 22, 1890

Appeal from circuit court, Morgan county; JOHN MOORE, Judge.

This action was brought by the appellee, Brown Irvin, against the appellant, M. McInerny, and sought to recover damages for a trespass committed on the lands alleged to belong to the plaintiff, by breaking down the fence and trampling under foot the vegetables. The plaintiff based his claim to the strip of land in controversy, which was a part of a lot in the town of Decatur, on a deed made to him by one N. T Tisdale, bearing date July 15, 1871. On the plaintiff offering to introduce this deed in evidence, the defendant objected; but the court overruled his objection, and the defendant thereupon excepted. The evidence of the plaintiff tended to show that he had been in continuous possession of the part of the lot in controversy ever since the execution of this deed, and had warned the defendant to keep off of the said tract of land. The defendant based his claim to lot 204 on title which he derived indirectly from the said N. T Tisdale. The defendant purchased the lot numbered 204 from one Nelson, who purchased from one Sutton, and Sutton purchased from the said N. T. Tisdale, December 2, 1881. The contention of the defendant was that, as he bought the lot numbered 204, and as the part of the lot involved in this suit was a part of the said lot 204, he was entitled to the whole of the lot, and therefore had a better title to the tract involved than the plaintiff, and hence could not be guilty of trespass. In substantiation of his claim he introduced one Minnie King, by whom he proved that she lived on the lot 204 in the years 1881, 1882, and 1883, and that the part of the lot now involved was not then inclosed within plaintiff's fence, but the said fence was on the line between the lot of the plaintiff and the said lot 204, and that the part here involved was a part of the lot 204. There was an attempt made to impeach the said Minnie King in the manner shown by the opinion. The rulings of the lower court on the pleadings and evidence are here assigned as error by the defendant below, who prosecutes this appeal.

O Kyle, for appellant.

Wert & Speake, for appellee.

SOMERVILLE J.

The action is one of trespass to realty quare clausum fregit, the premises alleged to have been trespassed on being described as certain parts of lots 203 and 204 in the town of Decatur. The defendant interposed the plea of not guilty to the alleged trespass on lot 203, and the special plea of liberum tenementum as to lot 204.

1. The effect of the plea of liberum tenementum is to assert title to the locus in quo in the defendant. It raises the question of title, and evidence of paramount title in either party litigant is admissible precisely to the same extent as it would be under the general issue. An action of trespass of this nature being on the actual possession of the plaintiff, if the defendant proves in himself a superior title the damage done to the premises can be no injury to the possessor, because he has no right. Wilsons v. Bibb, 1 Dana, 7; Dean v. Fail, 8 Port. (Ala.) 491; 2 Greenl. Ev. § 626. The plaintiff having proved possession, the burden is then cast on the defendant to establish a better title in himself, or else his plea fails.

2. There was clearly no error in admitting in evidence the deed from Tisdale to the plaintiff, bearing date July 15, 1871. It is true that the execution of this paper was not acknowledged until February 9, 1887, about 16 years after it was signed and something over a month before the present action was commenced. But it was offered in connection with the alleged fact of the plaintiff's actual possession under it for 19 years prior to the date of the trial, and was certainly admissible as color of title to define the extent of such possession, and to characterize its boundaries. ...