Oliver v. Oliver

• Decision Date: 23 April 1914
• Docket Number: 477
• Citation: 187 Ala. 340,65 So. 373
• Parties: OLIVER v. OLIVER.
• Court: Alabama Supreme Court

65 So. 373

187 Ala. 340

OLIVER v. OLIVER.

No. 477

Supreme Court of Alabama

April 23, 1914

Rehearing Denied June 4, 1914

Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.

Ejectment by Ida I. Oliver against W.S. Oliver. From a judgment for defendant, plaintiff appeals. Affirmed.

The plaintiff sued to recover a rectangular strip of land 32 yards deep on the north side of the S.W. 1/4 of the S.W. 1/4 section 32, township 24, range 23, in Tallapoosa county. The defendant, as the judgment entry shows, filed the plea of the general issue, which he withdrew before trial, and filed in its stead a disclaimer with the statutory suggestion that the plaintiff being the owner of said above-described quarter section, and the defendant being the owner of the N.W. 1/4 of the S.W. 1/4 of said section, the suit arises out of a disputed boundary line between the said two 40-acre tracts.

The plaintiff joined issue on defendant's disclaimer, and the court announced to the jury that the issues before them were:

First, whether the defendant was in possession of any part of the 40 acres described in the complaint; and, second, that you will find where the true line is, and designate it in your verdict.

The evidence showed that both parties claimed title to their separate tracts through the same ultimate source; and, with respect to the location of the dividing line between them the evidence was in conflict.

The verdict of the jury was:

"We, the jury, find for defendant on his plea of disclaimer, and we further find that the true location of the boundary line between the lands of plaintiff and defendant to wit, between the northwest quarter of the southwest quarter and the southwest quarter of the southwest quarter of section 34, township 24, and range 23, is the old Jim Cosby survey."

There was judgment in accordance with the verdict. The evidence showed that defendant's possession extended southwards only as far as the old Jim Cosby line, and defendant's contention was that it was the true dividing line between his and plaintiff's land.

Plaintiff appeals and assigns for error the action of the court in permitting defendant to withdraw its plea of not guilty, and to enter a disclaimer, certain rulings on the evidence, and the refusal of certain charges requested by plaintiff in writing.

Charge 2, referred to in the opinion, is as follows:

The court charges the jury that if you are satisfied reasonably from all the evidence in the case that plaintiff's possession of the land sued for is supported by the weight of the evidence, your verdict will be for plaintiff, assessing her damages at no more than the amount claimed in the complaint.

M. Peters, of Alexander City, for appellant.

George A. Sorrell, of Alexander City, for appellee.

SOMERVILLE J.

The trial court properly allowed the defendant to withdraw his plea of not guilty, and to file the disclaimer with suggestion that the real issue in the case was a disputed boundary line. Bernstein v. Humes, 60 Ala. 582, 597, 31 Am.Rep. 52.

In the disputed boundary suggestion there was incorporated some unessential statements of fact, which, however, were properly treated as surplusage, and not vitiatory of the suggestion.

Under the issues made by the pleadings and submitted to the jury, it was clearly not permissible for plaintiff to show title by adverse possession to any part of the N.W. 1/4 of the S.W. 1/4 of section 34. See Wade v. Gilmer, 64 So. 611.

The land sued for is described in the complaint as a part of the S.W. 1/4 of the S.W. 1/4 of the section according to the public survey of the government, and the sole questions at issue were where the dividing line between the subdivisions in question was properly located under that scheme of survey, and whether defendant had possession of any land south of that line.

Plaintiff's theory of the case seems to be that any recognition by former owners of the two tracts of a "made line," where-ever it might be, was binding upon them, although their respective deeds and titles were based on the lines of the government survey, and regardless of the absence of an adverse possession up to such line.

This is not the law, for recognition by adjoining owners of a false line as the boundary between them is without effect, unless the party claiming beyond the true line also holds hostile possession up to the false line until the bar of the statute is complete. Even a formal agreement between them as to such a line could not, of itself, vest title in one of them beyond the true line to which each actually owns....