Morris v. Yancey, 1 Div. 774

• Court: Supreme Court of Alabama
• Writing for the Court: LAWSON; LIVINGSTON
• Citation: 104 So.2d 553,267 Ala. 657
• Decision Date: 24 July 1958
• Docket Number: 1 Div. 774
• Parties: J. D. MORRIS v. Claude YANCEY.

Page 553

104 So.2d 553 267 Ala. 657 J. D. MORRIS
v.
Claude YANCEY. 1 Div. 774. Supreme Court of Alabama. July 24, 1958.

[267 Ala. 658]

Page 554

Thompson & White, Bay Minette, for appellant.

Wilters & Brantley, Bay Minette, for appellee.

LAWSON, Justice.

This is a statutory ejectment suit. The complaint was filed in the circuit court of Baldwin County on December 23, 1955, by J. D. Morris against Claude Yancey. The defendant pleaded the general issue. When the cause was first tried the court at the conclusion of plaintiff's evidence gave the general affirmative charge with hypothesis in favor of the defendant. There was jury verdict in favor of the defendant, on which the court rendered judgment. The plaintiff appealed to this court. We reversed the judgment of the trial court and remanded the cause for further proceedings. Morris v. Yancey, 266 Ala. 54, 94 So.2d 195. We held in effect that although neither of the parties had shown title to the property, the trial court erred in giving the affirmative charge in favor of the defendant for the reason that the plaintiff's evidence tended to show possession by him for a number of years prior to the possession of the defendant.

There was no change in the pleadings after remandment. On the second trial, where evidence was offered by both parties, the jury returned a verdict in favor of the defendant. The plaintiff's motion for a new trial was overruled. He has again appealed to this court.

The plaintiff sued to recover possession of 'All East Fraction of Section 24 Township 4 South Range 1 East situated in Baldwin County, Alabama,' except four acres described in the complaint by metes and bounds, which four acres we will sometimes refer to hereafter as the Yancey home place.

[267 Ala. 659] The opinion on former appeal did not describe the property in the way it is described in the complaint, although the property there described is in fact the same as that for which the plaintiff sued to recover possession.

We will refer to the lands described in the complaint, including the Yancey home place, as the section. The section is a long narrow strip of land. Its width at some points is said to be two acres, which we understand to be approximately 420 feet. It is not that wide at other points. Its exact length is not shown, but there is testimony to the effect that it is between a mile and a half and two miles in length. It is bounded on the west by Bay Minette Creek and on the north by Bay Minette Bay. The northernmost part of the section is bounded on the east by Bay Minette Bay. The remainder of the eastern boundary of the section is a high bluff or ridge. The southern boundary is described as being 'the Woochester lands.' The northern part of the section is called Cedar Point.

The section is described by one witness as being 'nothing but swamp lands' suitable only for pasture and timber and the

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operation of fishing camps on the southern part. Another witness said that the whole section is 'low, marshy, swamp lands' which are not suitable for cultivation. The section is 'full of bayous' and most of it is covered by water at high tide. At flood tide all of the section is covered by water except a few mounds situated at Cedar Point and on the Yancy home place, where the defendant maintains his home.

The southern boundary of the Yancey home place is approximately, 850 feet north of the southern boundary of the section. The Yancey home place extends northward at some points as much as 444 feet.

In ejectment, to authorize the recovery by the plaintiff, it must be made to appear by the evidence that plaintiff, at the commencement of the suit, had the legal title to the land sued for and the right to the immediate possession. A further cardinal rule, applicable to this character of action, is that the plaintiff must recover on the strength of his own title, without regard to the weakness of his adversary. Carpenter v. Joiner, 151 Ala. 454, 44 So. 424; Watson v. Spence, 258 Ala. 371, 62 So.2d 919.

The plaintiff, to establish legal title in himself, offered evidence substantially as follows: He came to Baldwin County in 1938. During the year 1939 while he was cutting timber for the Spanish Fort Development Company, he inadvertently cut timber on the section and in that way he 'found out about the land.' Apparently the plaintiff was cutting timber on the Woochester land which, as we have heretofore indicated, forms the southern boundary of the section, if we understand this record correctly. At that time the defendant was living on the four-acre tract, which we have called the Yancey home place. There were several fishing shacks on that place, including the one in which Yancey, the defendant, lived. Yancey maintained a garden near his home. In 1940 the plaintiff says that he began claiming the section as his property but he did not post 'no trespassing' signs. In that year he built a 'shotgun house,' which consisted of one long room, at a point 'just north of the south line of Section 24.' He operated a sawmill, which we understand the record to show was located about 413 feet south of the southern boundary line of the section. In regard to the use to which the one-room house was put, the plaintiff stated: 'As long as we were in the mill business we had tenants in it and prior to that we had tenants and when we had no tenant, we had timber stacked.' As going to show his possession of that part of the section north of the Yancey home place, the plaintiff testified that in 1940 and 1941 he cut timber and in 1943 and 1944 he kept a boat 'tied up' at Cedar Point, which boat was used daily. He permitted a man by the name of Willie Green to cut ten or twelve cedar posts from [267 Ala. 660] the part of the section north of the Yancey home place. He 'burnt' that part of the section and he gave four persons permits to hunt on that land.

In regard to that part of the section which lies south of the Yancey home place, witness testified that he not only built the one-room house thereon, but that he cleared the swamp and underbrush and cut many trees and hardwood logs from that land. He further testified that he hauled sand from the southeast corner of the section and stacked logs all over the land between his mill and the fence which was around the Yancey home place.

According to plaintiff, he began assessing the section for taxation in 1948, although he had no paper title thereto.

The plaintiff offered in evidence quitclaim deeds made by Litch Wilson and wife and Mary Etta (Wilson) Davison and husband, who claim title under the statute of descent and distribution through the process of devolution as the heirs at law of one Thomas Willson. The deed from Litch Wilson and wife was dated

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January 18, 1950, and that from Mary Etta (Wilson) Davison and husband was dated June 1, 1955. The plaintiff also introduced in evidence a certified copy of a patent issued by the United States to said Thomas Willson. The transcript on this appeal shows the date of the issuance to have been October 1, 1856, while the opinion and transcript on former appeal fixed the date of issuance as October 1, 1846. This variance as to date of issuance is of no importance and is mentioned here only to explain why our two opinions in this case differ in regard to the date of issuance of the patent. We also take note of the fact that the opinion on former appeal inadvertently referred to the patentee as Thomas Wilson rather than Thomas Willson.

The plaintiff also offered evidence going to show that Thomas Willson died intestate and that one of his heirs at law was his son, Henry Thornton Wilson, who also died intestate. There was evidence offered by the plaintiff to the effect that among the heirs at law of Henry Thornton Wilson were his son, Litch Wilson, and his daughter, Mary Etta (Wilson) Davison, from whom plaintiff secured the quitclaim deeds mentioned above.

The two quitclaim deeds...