Ware v. Dewberry

• Decision Date: 12 June 1888
• Citation: 4 So. 404,84 Ala. 568
• Parties: WAREN v. DEWBERRY ET AL.
• Court: Alabama Supreme Court

4 So. 404

84 Ala. 568

WAREN v. DEWBERRY ET AL.

Supreme Court of Alabama

June 12, 1888

Appeal from circuit court, Clay county; JAMES W. LAPSLEY, Judge.

Action by W. J. Ware against J. W. Dewberry and others to recover a certain tract of land. The court charged the jury, at the request of defendants, that if the jury believed the evidence they must find for the defendants. To this charge the plaintiff excepted, and now assigns the giving of the said charge as error.

Lackey & Hood and Smith & Smith, for appellant.

J. T. Heflin and A. S. Stockdale, for appellees.

SOMERVILLE, J.

The circuit court erred in giving the general affirmative charge instructing the jury to find for the defendants if they believed the evidence. The defendants came into possession of the land sued for as the heirs of one Aaron Dewberry, holding by privity of estate under him, as their deceased father and ancestor. He had purchased the land from the plaintiff, having paid a part of the purchase money, and gone into possession during his life-time. Under this state of facts the defendants were estopped from denying the original title of the plaintiff, from whom they claimed derivatively. Railroad Co. v. Railway Co., 75 Ala. 516. They must show either a divestiture of the plaintiff's title by conveyance of some kind from him, or else an adverse possession for a sufficient length of time to bar the right of entry on his part. The plaintiff, moreover, is shown to have had a prior actual possession of the lands, accompanied by both color of title and claim of ownership, which would be sufficient to authorize a recovery against an intruder or trespasser. Crosby v. Pridgen, 76 Ala. 385; Wilson v. Glenn, 68 Ala. 383. The defendants deriving possession, and, so far as the bill of exceptions shows, only an imperfect equitable title from the plaintiff, intermediately through their father, Aaron Dewberry, the court would have been justified, on request, in giving the general affirmative charge for the plaintiff. Reversed and remanded.