Shiver v. Hardy

• Decision Date: 21 December 1905
• Parties: SHIVER v. HARDY ET AL.
• Court: Alabama Supreme Court

39 So. 669

145 Ala. 660

SHIVER v. HARDY ET AL.

Supreme Court of Alabama

December 21, 1905

Appeal from Circuit Court, Houston County; John P. Hubbard, Judge.

"Not officially reported."

Action by Daniel Shiver against John Hardy and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Defendants (appellees here) requested the court to give the following charges, which the court gave: "(1) The court charges the jury that in this case the plaintiff must recover on the strength of his own title, and cannot recover on the weakness of the title of the defendant Woodham. (2) The court charges the jury that in this case the plaintiff cannot recover unless he shows a legal title in himself, or that he or some one under whom he claims was in possession of the land sued for prior to the bringing of this suit, although they may believe from the evidence that the defendant Woodham had no title for the land sued for."

Reid Sollie & Kirkland, for appellant.

Espy &amp Farmer, for appellees.

DENSON J.

Statutory action in the nature of an action of ejectment to try title to land. The land was described in the complaint as follows "Twelve acres more or less, lying on the west side of and along the east line of section 26, and being a portion of the east side of the east half of northeast quarter of section 26, in Henry county, Alabama." The defendants each disclaimed possession of the premises sued for, and on issue joined on the disclaimer there was verdict and judgment for the defendants. From the judgment the plaintiff took an appeal.

The plaintiff having elected to take issue on the disclaimer, the denial of possession put in issue the question of possession, and only that. Title was entirely eliminated as an issue in the case. In other words, the disclaimer "was, for the purpose of this trial, an admission of plaintiff's title, with a denial of defendants' possession." McQueen v. Lampley, 74 Ala. 408; Bailey v. Selden, 124 Ala. 403, 26 So. 909; Ely v. Pace, 139 Ala. 293, 35 So. 877.

With respect to the question of possession, the location of the boundary line running north and south between sections 26 and 25 was the only point in controversy. It was conceded that the plaintiff and defendants were coterminous proprietors the land of the plaintiff being located in section 26, and that of the defendants in section 25. The evidence as to whether the land of which defendants were in possession was in section 26 or...