Rogers v. Keith

• Decision Date: 15 November 1906
• Parties: ROGERS v. KEITH ET AL.
• Court: Alabama Supreme Court

42 So. 446

148 Ala. 225

ROGERS v. KEITH ET AL.

Supreme Court of Alabama

November 15, 1906

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

"To be officially reported."

Suit by Margaret Keith and others against John H. Rogers. From a judgment for plaintiffs, defendant appeals. Affirmed.

Frederick G. Bromberg, for appellant.

James M. Cloud and Sullivan & Stallworth, for appellee.

HARALSON J.

The suit was brought by Margaret Keith and others against John H Rogers, to recover possession of the N. 1/2 of section 34 township 2 N., range 1 W., in Mobile county. Plaintiffs are the heirs at law of John Keith, deceased. There was evidence that said Keith went into possession of the lands in 1885 claiming under a purchase from the state; that his possession continued until his death in 1887, and that thereafter plaintiffs, through their agent, continued in possession under claim through their father. Plaintiffs then offered in evidence a receipt from the State Treasurer for the purchase money paid by John Keith to the state, and also a deed from the Auditor. The admission of these papers is assigned as error and insisted upon by appellant's counsel.

There was no error in admitting the receipt in connection with the other evidence of purchase. It tended to show that the possession was under a bona fide claim of purchase, and not in subordination of the title of some one else, nor the possession of a bare trespasser.

The deed from the State Auditor, admittedly insufficient as a muniment of title for the want of an acknowledgment or subscribing witness, was offered and admitted as color of title only. The description of the deed is as follows: N. 1/2 of Sec. 34, township, 2, range 1, Mobile county. It will be noted there is an omission to state whether the township is north or south of the base line, and east or west of the meridian used in the government surveys. The deed recites that the lands were assessed and sold for taxes as the property of the J. A. Roper estate, but there was no evidence that the lands in suit belonged to such estate. It is insisted that as there are more than one section, township and range in Mobile county of the numbers given and that the deed is void for uncertainty of description, and, therefore inadmissible as evidence.

Such an instrument, if offered as a muniment of title, and not rendered certain by other descriptive matter therein, is void and inadmissible. Brannan v. Henry (Ala.) 39 So. 92; Devlin on Deeds, 1010.

Is it for like reasons inadmissible as color of title? The general rule is, "If the deed offered is void because of the uncertain and indefinite description of the land conveyed, such a deed would not convey (operate as) color of title, and possession under it would be limited to 'Possessio pedis.' " Brannan v. Henry, supra, and authorities there cited. The reason for this rule is found in the purposes for which color of title is received in actions of ejectment founded upon prior possession, or title by adverse possession. These purposes are, first, to show that the possession originated and continued under claim of right; second, to define the extent of possession. Actual possession of a portion is considered as extending to the boundaries named in the color of title under which possession is held. If the instrument does not describe the lands it cannot shed light upon the character of possession asserted, neither can it determine the boundaries of such possession when it does not define the boundaries.

Keeping in view the reason of the rule as stated, we proceed to consider the instrument before us. The defect of description...