Stewart Bros. v. Ransom, 8 Div. 318

CourtSupreme Court of Alabama
Writing for the CourtSAYRE, J.
Citation87 So. 89,204 Ala. 589
PartiesSTEWART BROS. v. RANSOM.
Decision Date28 October 1920
Docket Number8 Div. 318

87 So. 89

204 Ala. 589

STEWART BROS.
v.
RANSOM.

8 Div. 318

Supreme Court of Alabama

October 28, 1920


Appeal from Circuit Court, Morgan County; F. Lloyd Tate, Judge.

Action by Stewart Bros. against W.T. Ransom for the recovery of certain lands. Judgment for defendant, and plaintiffs appeal. Affirmed.

Sample & Kilpatrick, of Hartsells, for appellants.

E.W. Godbey, of Decatur, for appellee.

SAYRE, J.

Statutory action in the nature of ejectment; second appeal. Stewart v. Ransom, 200 Ala. 304, 76 So. 70.

Plaintiffs, appellants, traced their title, through a mortgage and foreclosure, back to W.M. Lynn, and introduced evidence tending to show that the mortgagor Lynn had been in possession at the date of the mortgage, April, 1913. Defendant introduced a certified copy of a list of lands, which included the land in suit, granted by the federal [87 So. 90] government to the state of Alabama, May 23, 1828, known as the Muscle Shoals List of Lands; a copy of the tract book certified by the Secretary of State of the state of Alabama and showing a grant to H.D. Morrow (to whom the opinion on former appeal refers as "Moore") in 1858; and a deed, dated April, 1914, from Sarah L. Morrow and others, purporting to be the deed of the widow and "the only heirs and distributees of the late Henry S. Morrow, deceased," it having been shown that Henry S. Morrow was one of seven children of Hugh D. Morrow, deceased. Thereupon plaintiffs offered in evidence a judgment in favor of defendant against Lynn aforesaid, execution dated December 9, 1913, levy, sale, and a deed by the sheriff to defendant of the land in suit, dated January 24, 1914; the purpose of this evidence being to show that defendant claimed title under the same Lynn through whom plaintiffs had deraigned title, and so to estop defendant to show a different title.

Defendant was not to be so estopped. "When the plaintiff has proved that he and the defendant claim title to the land in controversy from a common source, and that of the two titles emanating from that source his is the superior, he shows a prima facie right to recover." Warvelle on Ejectment, § 265. and "where the defendant denies that he claims from the same source as the plaintiff, the latter may show that he does so claim by introducing in evidence the various deeds connecting him with such alleged common source" (italics supplied). Id. To the same effect, we think, may be cited Vidmer v. Lloyd, 184 Ala. 153, 63 So. 943, the leading case on appellants' (plaintiffs') brief. But the defendant in ejectment may avail himself of any legal defense, and has the undoubted right to purchase as many outstanding claims of title as he may see fit (Id., § 266), and it would seem that authority hardly need be cited to the further proposition of the same text that--

"Notwithstanding the proof of the insufficiency of his title under the common source, the defendant may still defeat the action by showing that there is a title superior to that of the person or persons under whom both parties claim, and that he is the holder of this title." Id

Certainly no case of ours denies the proposition. In Birmingham Fuel Co. v. Boshell, 190 Ala. 597, 67 So. 403, cited by appellants, the title of each of the parties was traced back to a common source, but there was no acquisition of an outstanding title. So, generally, in the other cases. But that defendant...

To continue reading

Request your trial
17 practice notes
  • Aiken v. McMillan, 1 Div. 287
    • United States
    • Alabama Supreme Court
    • October 15, 1925
    ...source by virtue of the statute. Code 1907, §§ 3979, 3980, 3982; Perryman v. Wright, 189 Ala. 351, 66 So. 648; Stewart Bros. v. Ransom, 204 Ala. 589, 87 So. 89. The issue of the Baudin patent did not effect or negative the bona fides of the Girard claim as color of title that was supported ......
  • Moran v. Sch. Comm. of Littleton
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 5, 1945
    ...N.E. 220; Vonherberg v. Seattle, D.C., 20 F.2d 247; [59 N.E.2d 282]Vendetti v. United States, 9 Cir., 45 F.2d 543;Stewart Bros. v. Ransom, 204 Ala. 589, 87 So. 89;Brenneman v. Dillon, 296 Ill. 140, 129 N.E. 564;Markendorf v. Friedman, 280 Ky. 484, 133 S.W.2d 516, 127 A.L.R. 416;Lobuzek v. A......
  • Moran v. School Committee of Littleton
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 5, 1945
    ...255 Mass. 611 . Vonherberg v. Seattle, 20 F.2d [317 Mass. 596] 247. Vendetti v. United States, 45 F.2d 543. Stewart Bros. v. Ransom, 204 Ala. 589. Brenneman v. Dillon, 296 Ill. 140. Markendorf v. Friedman, 280 Ky. 484. Lobuzek v. American Car & Foundry Co. 194 Mich. 533. Kantor v. Perth Amb......
  • Rollan v. Posey, 3 Div. 838
    • United States
    • Supreme Court of Alabama
    • January 26, 1961
    ...Booth Place for thirty-five years, is incompetent evidence and should not be considered under the holding in Stewart Brothers v. Ransom, 204 Ala. 589, 87 So. 89. We have not considered the affidavit as evidence and our decision is not based in anywise on the affidavit. We have not found in ......
  • Request a trial to view additional results
17 cases
  • Aiken v. McMillan, 1 Div. 287
    • United States
    • Alabama Supreme Court
    • October 15, 1925
    ...source by virtue of the statute. Code 1907, §§ 3979, 3980, 3982; Perryman v. Wright, 189 Ala. 351, 66 So. 648; Stewart Bros. v. Ransom, 204 Ala. 589, 87 So. 89. The issue of the Baudin patent did not effect or negative the bona fides of the Girard claim as color of title that was supported ......
  • Moran v. Sch. Comm. of Littleton
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 5, 1945
    ...N.E. 220; Vonherberg v. Seattle, D.C., 20 F.2d 247; [59 N.E.2d 282]Vendetti v. United States, 9 Cir., 45 F.2d 543;Stewart Bros. v. Ransom, 204 Ala. 589, 87 So. 89;Brenneman v. Dillon, 296 Ill. 140, 129 N.E. 564;Markendorf v. Friedman, 280 Ky. 484, 133 S.W.2d 516, 127 A.L.R. 416;Lobuzek v. A......
  • Moran v. School Committee of Littleton
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 5, 1945
    ...255 Mass. 611 . Vonherberg v. Seattle, 20 F.2d [317 Mass. 596] 247. Vendetti v. United States, 45 F.2d 543. Stewart Bros. v. Ransom, 204 Ala. 589. Brenneman v. Dillon, 296 Ill. 140. Markendorf v. Friedman, 280 Ky. 484. Lobuzek v. American Car & Foundry Co. 194 Mich. 533. Kantor v. Perth Amb......
  • Rollan v. Posey, 3 Div. 838
    • United States
    • Supreme Court of Alabama
    • January 26, 1961
    ...Booth Place for thirty-five years, is incompetent evidence and should not be considered under the holding in Stewart Brothers v. Ransom, 204 Ala. 589, 87 So. 89. We have not considered the affidavit as evidence and our decision is not based in anywise on the affidavit. We have not found in ......
  • 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