Powers v. Hatter

• Decision Date: 14 November 1907
• Citation: 152 Ala. 636,44 So. 859
• Parties: POWERS ET AL. v. HATTER ET AL.
• Court: Alabama Supreme Court

44 So. 859

152 Ala. 636

POWERS ET AL. v. HATTER ET AL.

Supreme Court of Alabama

November 14, 1907

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Lula G. Powers and others against Thomas A. Hatter and others in trespass and trover for cutting and carrying away timber from certain land. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

L. H. &amp E. W. Faith, for appellants.

McIntosh & Rich, for appellees.

ANDERSON J.

In an action of trespass quare clausum fregit, the plaintiff, in order to recover, must show actual possession, or if there is no actual possession--no possessio pedis--then he can recover by proving title to the land, which gives constructive possession. Shipman v. Baxter, 21 Ala. 456; Garrett v. Sewell, 108 Ala. 521, 18 So. 737. The plaintiffs failed to prove actual possession of the land prior to and at the time of the alleged trespass. The mere act of riding along the road which ran through the land on several occasions and paying tax on same a few times did not amount to actual possession. Failing to prove actual possession, they were put to proof of title in order to establish a constructive possession. Therefore, if the defendants showed actual possession, it would defeat plaintiffs' right to recover under the trespass count for, if defendants had the actual possession, there could be no possession on the part of plaintiffs, actual or constructive, even if they had the title.

It was not necessary, however, for the plaintiffs to have the possession in order to recover under the trover count, as they were entitled to recover in trover upon the strength of their title, and, the title to the land having been admitted in their ancestor, the defendants could only defeat a recovery under said count by showing that the title had been divested. It was admitted that Margina Hall, the mother of the plaintiffs, had the title to the land, and plaintiffs traced title from the other heirs to themselves, save the Gilberts; but the failure as to the Gilbert interest merely cut down the amount of their recovery, but did not cut off the right to do so.

The acknowledgment to the Gilbert deed was not good, as it set out an entirely different person from the one signing the same and was not, therefore, self-proving under the enabling act as to recording conveyances. It may be that the presumption would be that the grantors and the subscribing witnesses were all in Colorado, and that the best obtainable secondary evidence was admissible to prove the execution of the deed; but such evidence was not introduced. While the witness testified that she knew the handwriting of her brother, she never proved that the signature was in his handwriting, but testified that she sent it to him in Colorado, and he signed it and returned to her. She did not see him sign it, and could not, therefore, testify that he signed it, and the trial court did not err in sustaining the defendants' objection to her evidence.

The defendants' counsel stated in open court that "they relied on their title to the land and would defend solely on their title to the land involved in the suit." The undisputed evidence shows that the defendant was in the actual possession of the house and a small parcel of land surrounding the same, through one Miles, for over 10 years but this would not extend his possession to the entire tract, unless he had color of title thereto. Nor would his actual possession to the house and surrounding cleared land be available to him, unless he held the same under color of title or some bona fide claim, as there was no proof of a recorded declaration as required by section 1541 of the Code of 1896. Therefore, while the defendants' evidence showed an actual possession of the entire tract by constantly cutting and hauling wood and timber, camping on and going over the land, and paying taxes on same, it was disputed by some of the plaintiffs' evidence, and it was a question for the jury as...