State v. Broos

• Decision Date: 16 October 1952
• Docket Number: 1 Div. 497
• Citation: 257 Ala. 690,60 So.2d 843
• Parties: STATE v. BROOS.
• Court: Alabama Supreme Court

Page 843

60 So.2d 843

257 Ala. 690

STATE v. BROOS.

1 Div. 497.

Supreme Court of Alabama.

Oct. 16, 1952.

Pillans, Reams, Tappan, Wood & Roberts and Walter J. Lee, Mobile, for appellant.

D. R. Coley, Jr., Mobile, for appellee. The oral charge is in part as follows:

'If these defendants and the person through whom they claim actually went into actual possession of the land in question, exercised actual ownership over it in an open, notorious manner, so as to call attention of their ownership to the world, and putting a fence around the land and acutally farming it, may be taken into consideration by the jury as evidence tending to show possession of the land embraced within the fence, and the cultivation thereof, if the jury believe it, may be taken into consideration by the jury as notice to the world that they are claiming the land as owners.

'It is not conclusive, but it may be looked to by the jury as circumstances from which they may be justified drawing reasonable inferences.

'That is not the law today, but up to 1908, if these people and the ones through whom they claim heirs or devisees, were in the actual, open, hostile, notorious, adverse possession of the land, claiming to own it for a period of 20 consecutive years prior to May 1st, 1908, then they would be entitled to remain in possession, and the State of Alabama, acting for the School Board, cannot put them out.

'On the contrary, if they were there merely as squatters, not claiming to own the land, merely using it for their personal purposes, then they of course would never acquire title by prescription, unless during all that time they were acting in good faith, claiming to own the land.

'If a man buys a piece of property and builds him a fence around what he thinks to be in good faith the land described by his deed, and makes a mistake and embraces somebody else's land, and stays in open notorious, adverse possession of that land for a period of 20 years or more, then no matter what the description in his deed is, he gets title to the land by prescription, and that is what the Court understands to be the contention of this defendant here. That they or their predecessors in title went into possession, built a fence around it claiming to own it, and have offered evidence tending to show a continuous possession, hostile to the world, for a period of 20 years next prior to the first day of May, 1908.

'These chares were refused to plaintiff:

'III. The Court charges the jury that, if they are reasonably satisfied from the evidence that the defendant relies, for title, solely on adverse possession of herself and those under whom she claims title, then the jury cannot find a verdict for the defendant, unless they are reasonably satisfied from the evidence that there was adverse possession in those under whom defendant claims, for a continuous period of 20 years prior to February 11, 1893.

'IV. If the jury are reasonably satisfied from the evidence that the defendant relies, for title, solely on adverse possession of herself and those under whom she claims, then the jury cannot find a verdict for the defendant, unless they are reasonably satisfied from the evidence, either that there was adverse possession, by those under whom defendant claims, for a continuous period of 20 years prior to February 11, 1893, or that, on or after February 11, 1893, the defendant's predecessors in title gave notice of entry on the land sued for and claimed the possession thereof, by filing a declaration of such claim in the office of the Judge of Probate of Mobile County, Alabama.

'V. If the jury are reasonably satisfied from the evidence that the defendant claims under Sarah Fincher, and that Sarah Fincher was alive in 1893 and for a number of years thereafter, and that Sarah Fincher did not file in the office of the Judge of Probate of Mobile County, Alabama, any notice of claim of adverse possession to the land sued for, then title could not ripen in Sarah Fincher and her successors in interest by adverse possession, unless the jury be reasonably satisfied from the evidence that Sarah Fincher had color of title, or a bona fide claim of inheritance of the property from an ancestor, or a bona fide claim of purchase of the property, or that there had been 20 years of continuous adverse possession prior to February 11th, 1893.

'XII. The Court charges the jury that, if you are reasonably satisfied from the evidence that the defendant relies on adverse possession as a basis of her claim of title to the property sued for, then the burden of proof is on the defendant to reasonably satisfy you from the evidence that there existed the adverse possession necessary to show title in the defendant or her predecessors in interest under whom she claims. Such burden of proof is not carried if the evidence be merely inferential or speculative as to the character of possession or as to the length of time thereof.

'XIII. The Court charges the jury that adverse possession of the character that would ripen into title, cannot be established by evidence merely inferential or speculative in character.'

BROWN, Justice.

This appeal by the plaintiff is from a judgment of the Circuit Court of Mobile County entered on the verdict of a jury in favor of the defendant. The action is statutory ejectment brought by the State of Alabama, 'for the use and benefit of the Board of School Commissioners of Mobile County' for the recovery of possession of a segment of land, situated in the Wheelerville Community in Mobile County, consisting of twenty-nine and a fraction acres, located in Section 16, Township 4, Range 2, West, lying immediately north of the Tanner-Williams Ferry Road, leading easterly through Springhill into the City of Mobile. The suit was filed May 9, 1950.

The title to said segment, as a matter of judicial knowledge and as the evidence shows, was vested in the State for the use of the inhabitants of said township for the establishment and maintenance of public schools by the Act of Congress approved March 2, 1819, authorizing 'the inhabitants of the territory of Alabama' to form for temselves a constitution and state government and 'be admitted into the union, upon the same footing with the original states, in all respects whatever. * * *' 3rd U.S. Stat. at Large, p. 489.

The several propositions submitted to the Convention of Delegates by said act were duly accepted and ratified 'in convention at Huntsville, this second day of August, in the year of our Lord one thousand eight hundred and nineteen, and of American independence the forty-fourth.' See Code of 1923, Vol. 1, p. 81, for resolution accepting the proposition laid down in the Acts of Congress.

This suit was filed on May 9, 1950, one hundred and thirty years, nine months, and seven days after the title to the said property vested in the state under the Act of Congress and its acceptance by the people of Alabama for the use of the public schools.

The defendant interposed the statutory plea of 'not guilty', the general issue in such actions, and the only appropriate plea thereto if the defendant's purpose was to contest the plaintiff's title and right of possession to the property. Code of 1940, Tit. 7, § 941; Bynum v. Gold, 106 Ala. 427, 17 So. 667. Under such plea any fact tending to defeat plaintiff's title or sustain that of the defendant is within the scope of the issues. McCormick v. McCormick, 221 Ala. 606, 130 So. 226; Bynum v. Gold, supra.

The defendant, Bessie F. Broos, as the evidence goes to show, is the granddaughter of Frederick Fincher, whose wife was Sarah or Sallie Fincher, and the grandmother of the defendant. Fincher, Sr. acquired a home site in the Wheelerville Community in the year 1855 upon which he built a log house, located by the side of the Tanner-Williams Ferry Road, fronting south, leading from Wheelerville through Springhill easterly into the City of Mobile. These facts are affirmed by the evidence which shows that Frederick Fincher, defendant's father, was 85 or 86 years old when he died in the year 1948 and hence he was born either in 1862 or 1863, six or seven years after the deed from Patrick McKeon was executed to Frederick Fincher.

The evidence goes to show that the grandmother Sarah or Sallie Fincher was living in the log house within the memory of some of the granddaughters who testified for the defendant. No doubt she was living there with her son Frederick Fincher, Jr., who was born at said house, lived and died on said property. The north line of the house site whereon the log house was built was the section line between Sections 16 and 21, Township 4, South, Range 2 West, Mobile County. The tract of land involved in this suit lies immediately north of the back yard of said house and has been under fence and in cultivation for growing corn, watermelons and for pasture and during all of said time has been enclosed by fence and was so surrounded by fence at the commencement of the suit. The evidence goes to show that from a time of which 'the mind of living men runneth not to the contrary,' the land was so occupied, used and fenced.

Ed Thompson, testifying a few days before his 90th birthday, stated that he had known of such use for 80 years. The witness Lord, who was born in 1870, remembered such occupancy and use since he was 10 or 12 years old. Other witnesses for the defendant, ranging in age from 65 to 41, gave like testimony. The evidence shows that the defendant Bessie Broos derived title 'by descent, cast or devise' from a predecessor in possession of the land at the time of his death, her father, Frederick Fincher. He and his predecessors had been in such possession and lived at the old house and occupied said tract in controversy for 86 years, more than 30 years before the passage of the Act of February 2, 1893. The defendant, therefore, is within the protection of one of the major exceptions in said act, now § 828, Title 7, Code of 1940.

The appellant...