Murray v. Hoyle

• Decision Date: 09 November 1892
• Citation: 97 Ala. 588,11 So. 797
• Parties: MURRAY v. HOYLE.
• Court: Alabama Supreme Court

11 So. 797

97 Ala. 588

MURRAY v. HOYLE.

Supreme Court of Alabama

November 9, 1892

Appeal from circuit court, Mobile county; WILLIAM E. CLARKE, Judge.

Action of ejectment by Hugh Murray against George Hoyle. In support of his claim, plaintiff testified that he had been in the actual possession of the property sued for from the year 1862, and had inclosed the same by a fence. That the fence burned in the year 1865, and that during the four or five years after that time he rebuilt it; and that he and his family lived on the lands, and exercised acts of ownership over the property by cultivating the same, and at different times turning his cattle upon it. That he remained in open and continuous possession from 1862 to May 29, 1889, at which time defendant entered upon the property, and put a lot of lumber thereon. That defendant, after entering into possession, sued plaintiff in an action of unlawful detainer and recovered a judgment. That plaintiff, by advice of counsel, delivered the possession of the property, after the rendition of said judgment, to defendant. The testimony for defendant tended to show that he bought the property in May 1889, and soon thereafter entered into possession, and that after he had so bought the property, he had a conversation with plaintiff, in which plaintiff offered to buy the lot and asked him if some other lot would not do him as well. One Flannigan, as a witness for defendant, testified that, as agent for the owner of the property, one Frederick, he had charge of the lot from the year 1882 to the year 1887; that after he took possession thereof for Frederick plaintiff asked him to write to Frederick, and see if he would sell the lot; that, after he (Flannigan) had written to Frederick, he told plaintiff that Frederick would not sell the lot, and thereupon demanded for Frederick rent from plaintiff for the use thereof. This witness further testified that plaintiff never made any claim to the lot during the time he had it. There was introduced in evidence three deeds, the first of which was executed on August 5, 1867, by M. D. Grinnell to Martin Frederick, which conveyed the lot here sued for. The second deed conveyed the same property, and was executed on February 18, 1889, by Martin Frederick to L. Elizabeth McKinstry. The third deed, conveying the same property, was executed on May 23, 1889, by L. E. McKinstry and her husband to defendant. In rebuttal, plaintiff denied having the several conversations with defendant and with Flannigan; and also denied the validity of the several deeds introduced in evidence, alleging that at the time of the execution of the deeds he was in the open, notorious, and adverse possession of the property sought to be conveyed thereby. Upon the introduction of all the evidence, plaintiff requested the court to give the following written charges, and separately excepted to the court's refusal to give each of said charges as asked: (1) "The court charges the jury that if they believe from the evidence that the plaintiff actually used, occupied, and possessed said property described in suit continuously, openly, notoriously, and publicly against all the world, under a claim of ownership, for a period of ten years from the rebuilding of said fence, and thereafter continued in the actual occupation and possession of said property up to the date of the alleged conversation with Flannigan thereafter, then you must find a verdict for the plaintiff." (3) "The court charges the jury that if they believe from the evidence that the plaintiff was in the actual use and adverse possession of the property sued for on the date of the claiming it as his property, then said deed would be void, and, in that event, you must find a verdict for the plaintiff." (6) "The court charges the jury that if they believe from the evidence that the plaintiff was in the actual, open, notorious, and adverse possession, use, and occupation of said property described in suit, claiming the same as his against all the world at the time of the execution of the deed by McKinstry to the defendant on the 23d day of May, 1889, then said deed would be void, and, in that event, the jury must find for the plaintiff." The court, at the request of defendant, gave the following written charges, to the giving of which the plaintiff separately excepted: (1) "The court instructs the jury that to constitute adverse possession under the law there must exist and concur four things, to wit: First, there must be actual possession; second, continuous possession for a period of ten years; third, open and notorious possession; and, fourth, such actual, continued, open, and notorious possession must be accompanied by a claim of ownership; and, unless the testimony of this case reasonably satisfies your minds that the plaintiff has been claiming said lot, and if his claim had been wanting in any one of these elements, you should find a verdict for the defendant." (2) "The court instructs the jury that there can be no adverse possession without a claim of ownership on the part of the person asserting it; and, unless you are reasonably satisfied from the evidence that the plaintiff in this case has been claiming the lot n t his controversy as his property for a period of ten years before the commencement of this suit, you should find for the defendant." There was judgment for defendant, and plaintiff appeals. Affirmed.

Wm. E. Richardson, for appellant.

McIntosh & Rich and Jas. H. Webb, for appellee.

COLEMAN J.

Hugh Murray, the appellant, instituted the statutory action of ejectment against the defendant to recover possession of a certain lot of land, particularly described in the complaint. The plaintiff relied upon a title acquired by an adverse holding for more than 10 years. We have frequently held that the actual and continuous possession of land under a claim of ownership, openly and notoriously, adverse and hostile to the legal title and all others, for the statutory period of 10...