Stiff v. Cobb

• Decision Date: 16 May 1900
• Citation: 28 So. 402,126 Ala. 381
• Parties: STIFF v. COBB ET UX.
• Court: Alabama Supreme Court

28 So. 402

126 Ala. 381

STIFF v. COBB ET UX.

Supreme Court of Alabama

May 16, 1900

Appeal from circuit court, Cherokee county; J. A. Bilbro, Judge.

Ejectment by W. C. Stiff against W. A. Cobb and Mattie A. Cobb, his wife. From a judgment for defendants, plaintiff appeals. Affirmed.

This was a statutory action of ejectment, brought by the appellant, W. C. Stiff, against the appellees, W. A. Cobb and his wife, Mattie A. Cobb, for a certain lot, specifically described in the complaint. The case was tried upon issue joined upon the plea of the general issue. The evidence for the plaintiff tended to show that he was the heir of L. M Stiff, who died in February, 1866; that L. M. Stiff at the time of his death resided on a tract of land which included the lot in controversy, with his wife and his two children the plaintiff and his sister; that L. M. Stiff obtained the lot sued for from one Cole, Cole trading to him the lot in suit for a tract of land which L. M. Stiff purchased from McElrath; that, after the exchange of separate tracts of land between L. M. Stiff and said Henry Cole, L. M. Stiff and his wife entered upon the land sued for, and Cole went into possession of the tract of land obtained from said Stiff. The plaintiff, as a witness in his own behalf, testified that he had seen a paper writing from Henry Cole to his father, L. M Stiff, but after making diligent search among his father's papers, and looking carefully for said deed from Cole to his father, he was unable to find it. This witness further testified that after his father's death he and his mother and sister lived on the place together; that he paid the taxes on the place until 1890, and exercised acts of ownership over it, rented it out, and placed thereon various improvements. The plaintiff introduced in evidence the deed from McElrath and his wife to L. M. Stiff. The evidence for the defendants tended to show that the property sued for was the property of Mrs. Jane H. Stiff, the wife of L. M. Stiff and that when she and her husband lived on it it was recognized by them as her property, and that she had always claimed it as hers. The defendants introduced in evidence a deed from said Jane H. Stiff and her daughter conveying said property to the defendant Mrs. Mattie Cobb. This deed was executed on March 17, 1897. There was evidence introduced tending to shows that Mrs. Jane H. Stiff claimed the property as hers, and exercised acts of ownership over it, from the time of her husband's death up to the time of the sale of the property. Interrogatories were propounded to Mrs. Jane Stiff. Among the interrogatories, after asking how long had she resided on the land, she was asked the following question: "How did you hold or occupy said lots, and for how long a period did you occupy them?" The plaintiff objected to this question because it called for the conclusion of the witness and asked for irrelevant and immaterial evidence. The court overruled the objection, and the plaintiff duly excepted. The witness answered that she had resided on the lots 41 years, and that she held them as her property during said period. The witness was then asked the following question: "If any other person ever claimed said lands sued for, who it was, when it was, and what was the nature of such claim?" To this interrogatory the plaintiff objected on the ground that it called for irrelevant and hearsay testimony. The court overruled the objection, and the plaintiff duly excepted. The witness answered that no one ever claimed said property during the time she held or occupied it. Upon being asked as to how the purchase money for said lands was paid, and whose money paid for said lands, the plaintiff objected to such interrogatory upon the ground that it called for irrelevant testimony, and it called for transactions with or statements by the husband of the witness, who was dead. The court overruled the objection, and the plaintiff duly excepted. The witness answered that the lands inquired about were purchased before the death of her husband, and paid for with money belonging to her. The defendants' evidence further showed that the lot sued for was a part of a larger tract of land and that the other portions of said tract had been sold by Jane H. Stiff to other parties than the defendants. The defendants introduced in evidence the deeds to said several purchasers, of all of the original tract of land. The plaintiff duly objected to the introduction in evidence of each of these deeds, and duly excepted to the court's overruling his objection. The defendants also offered in evidence a mortgage which had been executed by Jane H. Stiff on the lot in suit, which had been paid. The plaintiff objected to the introduction of this mortgage in evidence and duly excepted to the court overruling his objection. Upon the introduction of all the evidence, the court, at the request of the defendants, gave to the jury the following written charges, to the giving of each of which the plaintiff separately excepted: "(1) If the jury are satisfied from the whole evidence that this property was originally paid for with the money of Jane Stiff, or that the property for which the property in controversy was exchanged was so paid for, this may be looked to by the jury, in connection with all the other evidence, in determining the nature of the possession alleged to be held by said Jane H. Stiff. (2) If the jury find from the testimony that the possession of the property sued for has been open, notorious, adverse, and exclusive, in Jane H. Stiff and those to whom she sold, for ten years next before the commencement of the present suit, they must find for defendants. (3) The jury may look to the fact in evidence that Jane H. Stiff has in the past made conveyances of parts of block G, for the purpose of explaining, in connection with the other evidence, the nature of her claim to the property sued for. (4) The court charges the jury that the plaintiff in this case must rely upon the strength of his own title, and not upon the weakness of defendants' title, and, if the plaintiff has failed to show a complete right to recover on the strength of his own title, then he cannot recover, even though the defendant has failed to make out a complete title. (5) The court charges the jury that if they find from the evidence that Mrs. Jane Stiff has held...