Perolio v. Doe ex dem. Woodward Iron Co.

• Citation: 197 Ala. 560,73 So. 197
• Decision Date: 16 November 1916
• Docket Number: 6 Div. 199
• Parties: PEROLIO et al. v. DOE ex dem. WOODWARD IRON CO.
• Court: Supreme Court of Alabama

73 So. 197

197 Ala. 560

PEROLIO et al. v. DOE ex dem. WOODWARD IRON CO.

6 Div. 199

Supreme Court of Alabama

November 16, 1916

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Ejectment by the Woodward Iron Company against Louis and Mary Perolio. Judgment for plaintiff, and defendants appeal. Affirmed.

J.B Aird, N.B. Feagin, and Smith & McCary, all of Birmingham, for appellants.

Cabaniss & Bowie, of Birmingham, for appellee.

THOMAS J.

This is a common-law action of ejectment, brought by the Woodward Iron Company, a corporation, against the appellants, Louis and Mary Perolio.

The demise was laid in different counts of the complaint, in the several lessors. The defendants, for answer to the complaint pleaded "not guilty" of the matters alleged therein. A jury being waived, the court heard the cause and rendered judgment for the plaintiff for the land the subject of the suit.

In a common-law action of ejectment, the plea of not guilty is the equivalent of the "consent rule," which requires the defendant, as a condition to controverting the lessor's title, to admit the truth of the "fictitious averments of lease, entry, and ouster." King v. Kent, 29 Ala. 546, 556; Clarke v Clarke, 51 Ala. 498; Sledge v. Swift, 51 Ala. 386; Bernstein v. Humes, 60 Ala. 582, 597, 31 Am.Rep. 52; Swann v. Kidd, 78 Ala. 173; Bynum v. Gold, 106 Ala. 427, 17 So. 667; Newton v. L. & N.R.R. Co., 110 Ala. 474, 19 So. 19; Black, Law Dict. 254, 255.

The bill of exceptions in this case fails to set out the record in the suit brought by G.B. Marshall against W.C. Gilmore, to enforce a vendor's lien on the lands in controversy, notwithstanding the fact that it recites that the whole file in that cause was introduced, that publication was made against the nonresident defendant, and that all the proceedings were regular. The only parts of the record in said cause offered in evidence, shown by this bill of exceptions, are the original bill and the decree.

In the decree in the Marshall-Gilmore Case, it is recited that the cause was submitted on the original bill, the decree pro confesso, and the testimony noted by the clerk and register. The bill of exceptions in this case failing to set out this record, we will indulge the presumption necessary to support the action of the lower court in overruling defendants' objections to the introduction of such evidence, and in finding, as it did by its judgment, that the proceeding in said cause of Marshall v. Gilmore was sufficient to divest the title to the lands in question out of Gilmore and to vest the same in Marshall.

The bill in the case of Marshall v. Gilmore, filed in the city court of Birmingham, was for the enforcement of a vendor's lien on the land in question. It was therein averred that on August 9, 1882, one W.R. Medlin sold these lands to Gilmore and put him in possession of the same; that Gilmore secured the payment of the purchase money by his note, describing the land, made payable to Medlin on the 1st day of March, 1883; that on June 27, 1885, said vendor, Medlin, sold and transferred this note to G.B. Marshall; and that said note was due at the time the bill in said cause was filed. The bill further prayed for service on defendant Gilmore, as a nonresident, for an ascertainment of the amount of the purchase money, to have declared a lien on the land for the amount of said balance due, and to have decreed a sale of the land for the payment thereof. On final hearing, May 7, 1886, a vendor's lien was declared in favor of Marshall, and a sale was ordered pursuant to the statute then governing in the sale of lands belonging to a nonresident defendant. Code 1876, § 3834. At the sale under this decree Marshall became the purchaser, and the sale was reported by the register and duly confirmed. On this trial plaintiff introduced in evidence said deed executed, pursuant to said decree, by the clerk and register, to Marshall, of date June 8, 1888, duly recorded, conveying the lands in question. Defendants objected to its introduction on the ground that the bill showed that the court, in the aforesaid suit, had no jurisdiction to decree the sale of the land; and reserved an exception to the adverse ruling of the court. Plaintiff then offered in evidence the deed to said lands, duly executed and recorded, of date May 1, 1886, by W.R. Medlin and wife to G.B. Marshall; and defendants objected and excepted to the introduction in evidence of said deed, on the ground that the lands were held adversely by the defendants and those under whom they claimed title, at the time of said conveyance.

It is clear that both parties claim title from a common source--W.C. Gilmore. The plaintiff claims through the enforcement of said vendor's lien, and the defendant, as heir and by purchase from Gilmore's children. Undoubtedly, Gilmore had an interest in the land at the time of the enforcement of the vendor's lien, that the chancery court had the power to sell, though Medlin was not made a party to that proceeding. Neither party in this case can deny the title of Gilmore, nor was it necessary to trace title beyond Gilmore. Pollard v. Cocke, 19 Ala. 188; Gantt v. Cowan, 27 Ala. 582; Matkin v. Marx, 96 Ala. 501, 11 So. 633; F.B. & I. Co. v. Schall, 107 Ala. 531, 18 So. 108.

So far as this record shows, Gilmore's purchase of the land was from Medlin, on the date indicated, notwithstanding the tendency of the testimony to show that he had been in possession thereof before said purchase. This court cannot conclude, on such possession by Gilmore, that the allegation in the bill that Medlin sold to Gilmore and put him in possession of the land in 1882, and that Gilmore executed his note for the purchase money, was conclusive of collusion on the part of Medlin and Gilmore to defraud Gilmore's wife of a homestead right. No such defense was made to the suit by Marshall against Gilmore to enforce his lien. This question is not now open to collateral attack by Gilmore or by those claiming under him. The plaintiff, Marshall, however, foreclosed any possibility of

Medlin's having an outstanding title or interest in and to said lands, by offering in evidence a deed, duly executed and recorded, by W.R. Medlin and wife to G.B. Marshall, conveying the land in dispute to him, before the foreclosure of the vendor's lien was completed in the chancery court.

There was no error in admitting in evidence the record of the original proceedings in said suit in equity of G.B. Marshall and W.C. Gilmore, and the deed of the clerk and register made pursuant to the decree of sale.

Defendant in the former suit, W.C. Gilmore, the ancestor and immediate predecessor in title of defendants in this suit, was in possession of the lands under claim of title from Medlin; and by purchase at said sale Marshall acquired Gilmore's right of possession. This right therefore passed by mesne conveyances to the plaintiff in this cause. It was sufficient to support a common-law action of ejectment, as against the defendants, unless they show a better right. McCall v. Pryor, 17 Ala. 533; Clarke v. Clarke's Adm'r, 51 Ala. 498; Bradshaw v. Emory, 65 Ala. 208; Beard v. Ryan, 78 Ala. 37; Payne v. Crawford, 102 Ala. 387, 14 So. 854; Dodge v. Irvington Land Co., 158 Ala. 91, 48 So. 383, 22 L.R.A. (N.S.) 1100.

In the Dodge Case, the court said:

"The plaintiff's right to recover is founded upon the principle that 'possession of lands is prima facie evidence of title, and is sufficient evidence against all who do not show a prior possession or a better title.' *** This principle in no wise contravenes the doctrine that the plaintiff in ejectment must recover, if at all, upon the strength of his own title, and not on the mere weakness of that of his adversary. It simply accords to his possession, as evidence, a presumption of title, which must be rebutted or overcome by his adversary; and this his adversary may do, if not a bare trespasser, and he has not the legal title, by showing his antecedent actual possession, or an outstanding title in a third party, or that plaintiff's title was subordinate or permissive, or that the action is barred by the statute of limitations."

This case has been cited with approval on this point, in Carter v. Walker, 186 Ala. 140, 65 So. 170; Holder v. Bain, 185 Ala. 590, 64 So. 292; Hornsby v. Tucker, 180 Ala. 418, 61 So. 928; Fletcher et al. v. Riley, 169 Ala. 433, 53 So. 816; Owen v. Moxon, 167 Ala. 621, 52 So. 527.

In the absence of color of title, it is incumbent upon a defendant to show actual possession of the real property in question; that is to say, such possession as, from its nature, it is susceptible of. A mere trespasser can acquire title to only that portion of real property which he actually occupies. Ala. S.L. Co. v. Matthews, 168 Ala. 200, 53 So. 174; Black v. T.C.I. & R.R. Co., 93 Ala. 109, 9 So. 537; Lucy v. Tenn. & Coosa R.R.R. Co., 92 Ala. 246, 8 So. 806; Hughes v. Anderson, 79 Ala. 209; Burks v. Mitchell, 78 Ala. 61.

The...