McMillan v. Aiken, 1 Div. 127

CourtSupreme Court of Alabama
Citation205 Ala. 35,88 So. 135
Docket Number1 Div. 127
PartiesMcMILLAN v. AIKEN et al.
Decision Date18 November 1920

88 So. 135

205 Ala. 35

AIKEN et al.

1 Div. 127

Supreme Court of Alabama

November 18, 1920

Appeal from Circuit Court, Baldwin County; A.E. Gamble, Judge.

Action by Benjamine F. McMillan against Norma Aiken and another for trespass to land, conversion of certain lumber, and for trover. Judgment for defendants, and plaintiff appeals. Reversed and remanded. [88 So. 137]

Brooks & McMillan, of Mobile, for appellant.

Harry T. Smith & Caffey, of Mobile, for appellees.


The suit is for trespass on land, for the cutting and taking of timber therefrom, and for the conversion of the same. Some phases of the litigation have been considered by the court.

A bill was filed by Norma Aiken and others against B.F. McMillan and others seeking injunction until respondents could establish title to the lands by action at law and to prevent further trespass. Held: (1) That the possession of a holder of land "under a bona fide color of title will be extended to the limits described in the color" (limited by adverse holdings), and possession as so extended is actual and not constructive; (2) where for more than 20 years respondents have been in such possession, "as the character of the land reasonably admitted, of land to which both complainants and respondents had color of title under overlapping grants, the actual possession by complainants of a part of their grant was not extended by their color of title to the land in question, although such actual possession commenced prior to respondent's possession of the particular land in controversy." McMillan et al. v. Aiken et al., 182 Ala. 303, 62 So. 519.

Responding to this adjudication, Aiken brought ejectment, and rendition of judgment was for plaintiff, and McMillan's appeal resulted in reversal and remandment, on the ground that--

The trial court had charged "the jury that plaintiff in this case has shown a perfect legal paper title to the land sued for and is entitled to recover unless the jury are reasonably satisfied from the evidence that the defendants acquired title by having and maintaining open, notorious exclusive adverse possession of the property for a continuous period of 10 years."

It was said:

"It is established in this court that, when the plaintiff relies upon a conveyance from another, there must be evidence that, at the time of the conveyance, the grantor had the legal title to the lands in question. Baucum v George, 65 Ala. 259, 267. *** Our opinion is that the land described in the Baudin-Kennedy instrument has no reference to the land lying south of Bayou Jasamine, formerly Bayou Forbeau. *** The trial below proceeded upon a different basis. ***" McMillan et al. v. Aiken et al., 189 Ala. 330, 66 So. 624

The next trial was on a complaint by McMillan against Aiken and others containing counts for trespass quare clausum fregit, trespass de bonis asportatis, and trover, pertaining to the land on which grew certain timber and the logs were cut and removed therefrom, and it was declared that plaintiff's proof of title by adverse possession was insufficient for submission to the jury, in view of the principle that in case of mixed possession (McMillan owning the timber, and the title to the land being in Crosby) color of title is available to the holder of the true title only. A reversal was the result. Aiken et al. v. McMillan, 201 Ala. 280, 78 So. 56.

The last trial upon counts (1) for trespass on lands, known as the "Francis Girard tract," being in section 44, township 1 north, range 2 east, Baldwin county, Ala.,"in the possession of plaintiff," and for cutting timber on said land during the year 1913, (2) for the wrongful taking of the property of plaintiff, viz. "417 gum logs, 27 ash logs, and 18 cypress logs," and (3) for the conversion of said logs, resulted in the giving of the general affirmative charge for defendants. [88 So. 138]

Several questions are presented on introduction of evidence. In interrogatories propounded by plaintiff to defendant (under the statute) and the answers offered in evidence by plaintiff, wherein defendant had answered that "Louis Baudin, to whom the land was patented, conveyed the same to Joshua Kennedy, Sr.," it was competent to introduce in evidence said Kennedy's will devising his lands to his children, one of whom was defendant's mother. If the lands were conveyed by Louis Baudin to Joshua Kennedy, Sr., and defendant's mother, sisters, and brother acquired respective interests therein by devise, there was no error in admission of evidence of the respective deeds of Adelaide A. Aiken, Mary E. Barnwell, and W.G. Aiken, purporting to convey to defendant such interests in the lands claimed by Louis Baudin under his Spanish grant, though conveyed by his heirs and legal representatives to Kennedy. The deeds from Alma, Leila, and Adelaide Aiken of date of August 14, 1901, purporting to convey other lands than those on which the suit is based, were improperly admitted. McMillan et al. v. Aiken et al., 189 Ala. 330, 66 So. 624.

Against due objection and exception, defendant introduced in evidence a deed from Louis C. Baudin to Clara A. Aiken (of date February 21, 1870), acknowledged before the probate judge (not recorded), purporting to convey lands described as the "Louis Baudin tract near Stockton, bounded on the north by the Reuben Dyer tract, east by the Tensaw river, south by thirty-first degree of north latitude and west by the township line dividing 1 and 2 east." The grounds of objection were: It was not shown that the grantor "ever was connected in any way with this land," and the deed is not shown to have been recorded and bears on its face evidence of alteration, and was illegal and incompetent testimony. As a witness, one of defendants, having testified that she did not know the handwriting in the deed, and that, if the name of Louis Baudin was erased she did not know anything about it, was asked by plaintiff, "You can see it is rubbed out with a pencil, can't you?" and answered that she thought it just a blot; did not know who rubbed that off with a pencil, or who signed it; that her "mother had this first deed, and then she secured the second one when she had lost or misplaced the first one, not when she died, but in later years," and did not procure it from the same Louis Baudin who signed the first one. It is shown by such admission that the deed was not free from suspicion or unblemished by alteration. It was not self-proving under the statute. The evidence not only failed to show its execution by the grantors, but failed to show that the grantors or predecessors in title had any interest in or possession of the lands sought to be conveyed; failed to show "ancient or modern corresponding enjoyment" or "other equivalent or explanatory proof" of possession by the grantors or predecessors in title. No "acts referable to the title" under this deed are shown before the date of the trespass in question to the land south of Bayou Jessamine. Doe ex dem. Farmer's Heirs v. Eslava, 11 Ala. 1029; Carter v. Doe ex dem. Chaudron, 21 Ala. 72, 91. In the absence of proof of its execution, before a deed at least 30 years old is admissible in evidence as an ancient document, it must not only be found in the proper custody, but must be unblemished by alteration, and otherwise "without marks of suspicion attached to it," and "having nothing suspicious about it." S.-S.S. & I. Co. v. Lollar, 170 Ala. 239, 246, 54 So. 272; White, McLane & Morris v. Farris, 124 Ala. 461, 465, 27 So. 259; Carter v. Doe ex dem. Chaudron, supra.

Questions propounded to witnesses Bryant and Roach, respectively, "Who has been in possession of the land next west of you since you have known it?" and "Who has been in possession of that land ever since you have known it?" sought to elicit evidence of the fact of possession of land, a collective fact to which a witness may testify. Eagle & Phoenix Mfg. Co. v. Gibson, 62 Ala. 369, 372; Steed v. Knowles, 97 Ala. 573, 578, 12 So. 75; Driver v. King, 145 Ala. 585, 595, 40 So. 315; Ashford v. McKee, 183 Ala. 620, 629, 62 So. 879; Smith v. Bachus, 195 Ala. 8, 70 So. 261; Long et al. v. Nadawah Lumber Co., 202 Ala. 523, 81 So. 25. No reversible error was committed, however, in declining to allow Bryant to answer, since the question was on rebuttal, and the matter inquired about had been covered by the witness in his direct examination. The answer of Roach, "I have always looked upon Mr. McMillan as being in possession of it," was not the statement of the collective fact of possession, but of a conclusion of the witness.

As a witness, Mr. McMillan testified of the conduct of the timbering business as affecting these lands before and after the same were conveyed to Stockton Lumber Company and thereafter by him as its successor in title that these operations simply continued; that without any stop-page "we ran the timber off of the land once a year generally whenever we had freshet." He was asked, "Was that in accordance with the neighborhood custom there?" and answered, "Yes." Though defendant's objection was sustained, the answer was not excluded. Thereupon the witness was asked: "Did other people get their timber out the same way?" Defendant's objection was sustained without answer, and exception reserved. Witness was permitted to testify: [88 So. 139] "The only way they could get it would be when the water rose in the spring. There is generally one time *** when we can pull the timber out of the swamp, and when the overflow came we would pull it out of the swamp into deep water. This was the reason for the roads which we cut between high waters. We first went in the swamp *** and had the timber deadened in the fall before the water rose, *** generally in the spring anywhere from the middle of January to March. *** In the meantime the timber had to be deadened long enough for the sap to run out, and when the sap ran out of...

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