Ross v. Goodwin

• Decision Date: 06 November 1889
• Citation: 88 Ala. 390,6 So. 682
• Parties: ROSS v. GOODWIN ET AL.
• Court: Alabama Supreme Court

6 So. 682

88 Ala. 390

ROSS v. GOODWIN ET AL.

Supreme Court of Alabama

November 6, 1889

Appeal from circuit court, Cleburne county; LEROY F. BOX, Judge.

This is a statutory real action, in the nature of ejectment, and was brought by the appellees, as the heirs of one Thomas J Goodwin, deceased, against the appellant, John Ross, as administrator de bonis non of the estate of John Goodwin, and was commenced on the 21st day of July, 1887. The defendant pleaded the general issue, the statute of limitations of 6 years, and the statute of 20 years. Issue was joined on these pleas.

The plaintiffs rested their right of recovery on a government patent from the United States to their ancestor, Thomas J Goodwin, deceased, which was dated on the 4th day of December, 1842. Upon the plaintiff's offering to introduce a copy of this patent. certified by the commissioner of the general land-office, the defendant objected, on the ground "that the original patent was not produced, or its loss or destruction is not proved, or its absence accounted for." The court overruled this objection, allowed the certified copy to be introduced in evidence, and the defendant excepted.

The evidence for the defendant tended to show that he was appointed administrator de bonis non of the estate of John Goodwin, deceased, and took possession of the lands in controversy about the year 1872; that, prior to that time in 1855 to 1858 and 1859, the said lands were in possession of different people, as tenants of the said John Goodwin that in 1860 one Thomas Ables went in possession of the said lands, and claimed them as his own up to the time of his death, in the fall of the year 1860; that after that time his wife remained in possession of said lands, with her family until 1865; and that in 1866 the said lands were rented for the benefit of the said Thomas Ables' wife. There was other evidence of various tenures of the lands in controversy by different persons. Upon the examination of one J. H. Ables, as witness for the defendant, the defendant asked him this question: "Whose land was the land sued for generally known as, in the neighborhood where it was situated?" The plaintiffs objected to this question. The court sustained the objection, and the defendant excepted.

At the request of the plaintiffs, the court gave the following charges in writing: "(1) No possession can defeat plaintiff's title, unless it has continued for ten continuous years before the suit was brought. (2) When the statute of limitations of ten (10) years is relied on in defense of an action to recover lands, the burden of proof is on the defendant to show the extent of the possession, and that the possession was adverse for one continuous period of ten years before the suit was brought. (3) If the jury believe that Thomas Ables and his wife were in the notorious continuous, exclusive, and adverse possession of the lands sued for, claiming them as their own, from 1860 to the fall of 1865, then this time is not to be included as any part of the possession which might bar the plaintiffs' action. (4) If the jury believe from the evidence that neither the defendant nor those under whom he holds were in the possession of the lands for several years prior to December, 1877, then the possession since December, 1877, cannot be added to any former possession, to complete the bar of ten years' or twenty years' adverse possession, so as to defeat plaintiffs' right to recover. (5) Before the jury can find for the defendant under their plea of ten years' adverse possession, they must believe from the evidence that the defendant, and those under whom he holds, or either, had been in the adverse possession of the lands...