Spragins v. Fitcheard, 8 Div. 294.

CourtAlabama Supreme Court
Writing for the CourtSAYRE, J. SAYRE, J.
Citation91 So. 793,206 Ala. 694
PartiesSPRAGINS v. FITCHEARD.
Decision Date12 May 1921
Docket Number8 Div. 294.

91 So. 793

206 Ala. 694

SPRAGINS
v.
FITCHEARD.

8 Div. 294.

Supreme Court of Alabama

May 12, 1921


Rehearing Denied Nov. 24, 1921.

Appeal from Circuit Court, Madison County; O. Kyle, Judge.

Ejectment by Robert E. Spragins against Nick Fitcheard. Judgment for the defendant, and plaintiff appeals. Reversed and remanded.

Anderson, C.J., and McClellan, J., dissenting on the merits. [91 So. 794]

Spragins & Speake, of Huntsville, for appellant.

Betts & Richardson, of Huntsville, for appellee.

SAYRE, J.

Plaintiff (appellant) sued defendant in statutory ejectment for the recovery of 11.62 acres of land described by metes and bounds as follows:

"Beginning at a stake twenty-eight and forty-hundredths (28.40) chains north of the southeast corner of section thirty (30), township five (5) south, range one (1) west, on section line; thence south," etc

Further the land was described in plaintiff's declaration as "being a strip of land off the north and of that certain tract of land conveyed to Mourning T. Hembee by deed of J. H. J. Williams," etc., wherein the land conveyed (by Williams) was described as "the upper one-half of the tract purchased of John M. Crowder," etc. Afterwards the plaintiff amended the complaint by striking out the words "the same being a strip of land off the north end," etc., and "the upper one-half of the tract purchased of John M. Crowder," etc. The court directed a verdict for defendant.

It was very clearly made to appear in the trial court, as the record here discloses, that the parties traced their paper titles back to a common source, viz.: J. H. J. Williams. In such case it is sufficient to prove a title derived from the common source without proving an anterior title, as neither party can deny such title. 5 Michie, Dig. p. 271, where cases from Pollard v. Cocke, 19 Ala. 188, to Florence Bldg. Assn. v. Schall, 107 Ala. 531, 18 So. 108, are cited. But this did not estop the parties to show title by adverse possession (Stewart v. Ransom (204 Ala. 589, 87 So. 89), and plaintiff did claim title by adverse possession antedating defendant's possession, and in this latter case there was no need to trace title beyond his possession.

This case appears to have been tried by defendant in the trial court, and by the court, upon the theory that, if the land in suit was situated in the mathematical and geographical north half of the tract conveyed by J. H. J. Williams to Arthur Williams, from whom plaintiff derived paper title to the south half of the same tract, then plaintiff could not recover. This theory of the case overlooks plaintiff's claim of title by adverse possession prior to the possession of defendant, which plaintiff offered to show in evidence. Furthermore, plaintiff offered to show that about the time of the execution of the deed from J. H. J. Williams to Arthur Williams and to Mrs. Hembee, under the latter of whom defendant claimed-these two conveyances were evidenced by one deed-and inferably with a view to the execution of the deed, or to mark the line by which the grantor's deed had already divided between Arthur Williams and Mrs. Hembee, his children, a surveyor located the line between the south half and the north half of the tract as being at an old road, and either the surveyor or Arthur Williams set up a stone to mark the location of the line so determined. Mrs. Hembee was not present at the location of this line, but the evidence afforded an inference that her husband, who was there, acted in her behalf, and that subsequently and for many years she, or her tenants on one hand, and plaintiff or his tenants and predecessors in title on the other, cultivated the land on their respective sides and exercised other acts of ownership up to the line [91 So. 795] so laid down. This state of the case required the admission of the evidence offered by plaintiff to show the interpretation put upon the deed by the parties in interest and to show a title to the land in suit by adverse possession in plaintiff. Brown v. Cockerell, 33 Ala. 38; Hopkins v. Duggar, 204 Ala. 626, 87 So. 103; Smith v. Bachus, 201 Ala. 534, 78 So. 888; Hoffman v. White, 90 Ala. 354, 7 So. 816; Alexander v. Wheeler, 69 Ala. 332. Nor did the provision of the Code, § 2830, that "adverse possession cannot confer or defeat title to land unless the party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded," etc., apply to this case, for, clearly, the question between the parties was one of boundaries between coterminous owners. Smith v. Bachus, supra. If the evidence offered by plaintiff had been admitted, the result, to say the least, would have been for jury decision.

The docket shows a submission of this cause "on motion and on merits." There are two motions shown by a paper writing in the file: One, to dismiss the appeal for that the judgment appealed from was rendered more than six months...

To continue reading

Request your trial
19 practice notes
  • Rose v. Magro, 6 Div. 468.
    • United States
    • Supreme Court of Alabama
    • October 24, 1929
    ...save himself. The jury was selected under the provisions of sections 8610, 8662, 8663, Code 1928. Louis Pizitz Dry Goods Co. v. Cusimano, 206 Ala. 694, 91 So. 779. In Batson v. State ex rel. Davis, Sol., 216 Ala. 275, 280, 113 So. 300, 305, it is declared: "The right of parties to test juro......
  • Forrester v. McFry, 7 Div. 256.
    • United States
    • Supreme Court of Alabama
    • October 11, 1934
    ...225 Ala. 386, 143 So. 558. The same is true at law on such an issue. Oliver v. Oliver, 187 Ala. 340, 65 So. 373; Spragins v. Fitcheard, 206 Ala. 694, 91 So. 793; Steele v. Allen, 214 Ala. 285, 107 So. 812. This does not conflict with the settled doctrine that defendant cannot in the same su......
  • Calvert v. Bynum, 6 Div. 54
    • United States
    • Supreme Court of Alabama
    • February 15, 1951
    ...as requiring color of title as an indispensable element of adverse possession in some cases, has no application. Spragins v. Fitcheard, 206 Ala. 694, 91 So. 793; Copeland v. Warren, 214 Ala. 150, 107 So. 94; Hancock v. Warren, 235 Ala. 180, 177 So. 907; Guy v. Lancaster, supra; Denton v. Co......
  • Hodges v. Sanderson, 6 Div. 326
    • United States
    • Supreme Court of Alabama
    • June 18, 1925
    ...counsel for appellant. See Home Loan Co. v. Calhoun (Ala.Sup.) 104 So. 797; Gunn v. Parsons (Ala.Sup.) 104 So. 390; Spragins v. Fitcheard, 206 Ala. 694, 91 So. 793; Sanderson v. Hodges, 209 Ala. 635, 96 So. 871; Hopkins v. Duggar, 204 Ala. 626, 87 So. 103; Smith v. Bachus, 201 Ala. 534, 78 ......
  • Request a trial to view additional results
19 cases
  • Rose v. Magro, 6 Div. 468.
    • United States
    • Supreme Court of Alabama
    • October 24, 1929
    ...save himself. The jury was selected under the provisions of sections 8610, 8662, 8663, Code 1928. Louis Pizitz Dry Goods Co. v. Cusimano, 206 Ala. 694, 91 So. 779. In Batson v. State ex rel. Davis, Sol., 216 Ala. 275, 280, 113 So. 300, 305, it is declared: "The right of parties to test juro......
  • Forrester v. McFry, 7 Div. 256.
    • United States
    • Supreme Court of Alabama
    • October 11, 1934
    ...225 Ala. 386, 143 So. 558. The same is true at law on such an issue. Oliver v. Oliver, 187 Ala. 340, 65 So. 373; Spragins v. Fitcheard, 206 Ala. 694, 91 So. 793; Steele v. Allen, 214 Ala. 285, 107 So. 812. This does not conflict with the settled doctrine that defendant cannot in the same su......
  • Calvert v. Bynum, 6 Div. 54
    • United States
    • Supreme Court of Alabama
    • February 15, 1951
    ...as requiring color of title as an indispensable element of adverse possession in some cases, has no application. Spragins v. Fitcheard, 206 Ala. 694, 91 So. 793; Copeland v. Warren, 214 Ala. 150, 107 So. 94; Hancock v. Warren, 235 Ala. 180, 177 So. 907; Guy v. Lancaster, supra; Denton v. Co......
  • Hodges v. Sanderson, 6 Div. 326
    • United States
    • Supreme Court of Alabama
    • June 18, 1925
    ...counsel for appellant. See Home Loan Co. v. Calhoun (Ala.Sup.) 104 So. 797; Gunn v. Parsons (Ala.Sup.) 104 So. 390; Spragins v. Fitcheard, 206 Ala. 694, 91 So. 793; Sanderson v. Hodges, 209 Ala. 635, 96 So. 871; Hopkins v. Duggar, 204 Ala. 626, 87 So. 103; Smith v. Bachus, 201 Ala. 534, 78 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT