Monfee v. Hagan

• Decision Date: 06 June 1918
• Docket Number: 5 Div. 668
• Citation: 201 Ala. 627,79 So. 189
• Parties: MONFEE v. HAGAN et al.
• Court: Alabama Supreme Court

79 So. 189

201 Ala. 627

MONFEE v. HAGAN et al.

5 Div. 668

Supreme Court of Alabama

June 6, 1918

Rehearing Denied June 29, 1918

Appeal from Circuit Court, Elmore County; Leon McCord, Judge.

Ejectment by Rebecca Hagan and others against C.W. Monfee. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

J.M Holly and George F. Smoot, both of Wetumpka, for appellant.

W.P McGaugh, of Montgomery, and Eugene Ballard, of Prattville for appellees.

SAYRE J.

Statutory action of ejectment for an 80-acre tract, two 40's of land according to the government survey. Appellees, who were plaintiff's in the circuit court and brought this suit very shortly after attaining their majority, claimed title as children and heirs at law of Joseph J. Nummy, who died in possession of the land in suit. It was no part of his homestead. Nummy's only claim of right and title, as appeared from the evidence offered by plaintiffs, was that about three years before his death, which occurred in 1898, he had filed a declaration of adverse possession in the office of the judge of probate in accordance with section 1541 of the Code of 1896, and thereupon entered into possession of the land. In 1902 his widow made a deed of the entire tract to one Ross, delivering possession to him. Defendant, Monfee, pleaded the general issue, and, since plaintiffs were bound to recover, if at all, on the strength of their own title, and not on the weakness of their adversary's, defendant had a right to rest upon a mere denial of the title asserted by plaintiffs.

Defendant was also entitled to avail himself of any legal defense, and had the undoubted right to acquire by purchase or adverse possession as many outstanding claims of title as he saw fit, and if any such independent title were superior to that shown by plaintiffs, he would have had a perfect defense. And defendant, it appears, did undertake to answer plaintiffs' case by alleging and offering evidence to show that he and those under whom he claimed, reaching back to the widow Nummy, who conveyed to Ross, as we have said, whose title passed by mesne conveyances to defendant, for more than ten years, not including the time of the widow, had held the land adversely to all the world. If defendant had claimed under Nummy, and plaintiffs had rested and relied upon proof of prior possession by Nummy, without more, as evidence of title in him, and so of inherited title in them, that would have shifted the burden of proof to defendant, and, as...