Riley v. Banks, 7 Div. 922

• Decision Date: 10 August 1972
• Docket Number: 7 Div. 922
• Citation: 265 So.2d 599,289 Ala. 56
• Parties: E. W. RILEY v. Mrs. Scytha Jester BANKS.
• Court: Alabama Supreme Court

Page 599

265 So.2d 599

289 Ala. 56

E. W. RILEY v. Mrs. Scytha Jester BANKS.

7 Div. 922.

Supreme Court of Alabama.

Aug. 10, 1972.

Prentiss M. Rainey, Springville, Richard L. Taylor, Birmingham, for appellant.

Burttram & Williams, Birmingham, for appellee.

HEFLIN, Chief Justice.

This appeal arises from an action in the nature of ejectment brought by appellant- plaintiff, E. W. Riley, against Mrs. Scytha Jester Banks, appellee-defendant, in the Circuit Court of St. Clair County, Alabama, Northern Division.

In the action below appellant-plaintiff riley sought to recover possession of the NW 1/4 of the NW 1/4 of Section 1, Township 15 South, Range 2 East, and the NE 1/4 of the NE 1/4 of Section 2, Township 15 South, Range 2 East, both parcels lying north of the public road leading from St. Clair Springs to Ashville in St. Clair County, Alabama.

Verdict and judgment was rendered in favor of appellee-defendant Banks and appellant-plaintiff Riley perfected this appeal.

Appellant-plaintiff Riley places error in the failure of the trial court to give affirmative charges in his behalf, with and without hypothesis; in the refusal of the trial court to give certain other requested written charges; and in the overruling of an objection to the admission into evidence of a purported register's deed.

After carefully reviewing the record and the briefs of the respective parties, this court concludes that the trial court did not commit reversible error and the judgment of the trial court is due to be affirmed.

Appellant-plaintiff Riley contends that the trial court erred to a reversal in refusing to give his affirmative instructions duly requested in writing because his evidence clearly demonstrated a paramount title, and that appellee-defendant Banks' evidence wholly failed to meet the burden of overcoming the prima facie case made out by appellant-plaintiff Riley.

In considering this contention, this court must review the tendencies of the evidence in the light most favorable to appellee-defendant Banks without regard to any view this court may have as to the weight of the evidence; and must allow such reasonable inferences as could be drawn by the jury. Milford v. Tidwell, 276 Ala. 110, 159 So.2d 621; Commercial Union Fire Ins. Co. of New York v. Parvin, 279 Ala. 645, 189 So.2d 330; W. S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So.2d 375, and cases cited therein.

In Hale v. Brown, 211 Ala. 106, 110, 99 So. 645, 648, this court stated:

'The affirmative charge should not be given on any phase of disputed and material fact. When there is evidence reasonably affording an inference adverse to the right of recovery by the party asking the charge, or from which the jury might draw such adverse inference, such charge should not be given on request; and, in determining the propriety of affirmative instruction, the evidence against the party by whom such instruction is requested must be accepted as true. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135.'

Viewing the evidence in this light, this court is clear to the conclusion that the trial court did not err in refusing to grant the affirmative charges. There was strong evidence from which the jury could infer that the appellee-defendant Banks exclusively, openly, notoriously, continuously and hostilely possessed the premises under a claim of right for the prescriptive period of twenty years or under color of title for the statutory period of ten years.

There was testimony that in 1937 appellee-defendant Banks and her husband received a deed from James R. Forman, Borden Burr and others; that they fenced the property in 1937 and kept up the fences continuously up to the date of the trial; that her husband was in the dairy business and that horses and dairy cattle grazed said lands for seventeen years; that her husband was also in the sawmill business and that timber was cut from said property in 1939, 1948 and 1953; that they assessed the property for taxes since 1938; that she allowed hunting upon the property; that she posted the land with 'No Trespass' signs bearing her name for a long period of time; that a lake was dug on the property in 1952 and maintained; and that they had made a conveyance of a portion of said property to a religious association.

These acts of possession were verified by numerous witnesses. For example, Ocie Coley testified that he had lived in the area of the property all of his life; that he had known the appellee-defendant Banks since 1937 and knew that she had lived on the property since that year; that he worked for the Banks for 13 years; that the property was bounded all the way around with a fence and that he had cut the timber on the property for the Banks in 1939; and that they had dairy cattle on the lands during the period that he had worked for them.

The appellant-plaintiff Riley, on cross-examination, admitted that he had an argument with J. E. Banks, the husband of Mrs. Scytha Jester Banks, at the church site at a time which had to be before July 1945, concerning the ownership of the property. During the conversation Mr....