Warten v. Weatherford
| Decision Date | 17 December 1914 |
| Docket Number | 748 |
| Citation | 67 So. 667,191 Ala. 31 |
| Parties | WARTEN v. WEATHERFORD. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Limestone County; D.W. Speake, Judge.
Action by Henry Warten against Emmett Weatherford. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
W.R Walker, of Athens, for appellant.
James E. Horton, Jr., and M.K. Clements, both of Athens, for appellee.
The plaintiff had no paper title to the land in question, and as the defendant was not a trespasser, but held under color of title, which was older than the plaintiff's color of title, and also showed the title out of the government into a party with whom the plaintiff did not connect himself, the plaintiff in order to recover was required to establish a title by adverse possession and which he failed to do. McCreary v. Jackson Lumber Co., 148 Ala. 247, 41 So 822, and cases there cited. While the plaintiff proved some possessory acts upon the part of himself and his predecessors, they were not so open, peaceable, notorious, and continuous for 10 consecutive and unbroken years before the commencement of this suit as to ripen into title. Chastang v. Chastang, 141 Ala. 451, 37 So. 799, 109 Am.St.Rep. 45. The trial court properly gave the general charge requested by the defendant. The defendant was entitled to the general charge regardless of the testimony of W.L. Jones, as to the land that his father would have possessed. Hence, if the question eliciting his reply was error, it was error without injury.
The plaintiff offered in evidence, as color of title, three deeds which did not contain or purport to convey the land in question, and they could not therefore be regarded as color of title to said land, and the trial court did not err in sustaining the defendants' objection to same.
The judgment of the circuit court is affirmed.
Affirmed.
On Rehearing.
Upon the former consideration of this case we proceeded upon the theory that all the land involved was within the defendant's color of title; that is, was located in the E. 1/2 of S.E. 1/4 of the S.E. 1/4 of section 32. Upon a reconsideration, we find that the land sued for includes, as per the proof, a small quantity in the W. 1/2 of S.E. 1/4 of the S.E. 1/4 of section 32, and which is within the plaintiff's color of title and not the defendant's. The defendant having shown color of title, and an older possession, to the E. 1/2 of the S.E. 1/4 of the S.E. 1/4 of section 32, was entitled to the general charge as to all of the land as was located within his color of title, but the charge should have been limited so as to exclude all of the land sued for as was located within the W. 1/2 of the S.E 1/4 of the S.E. 1/4 of section 32, as the complaint claimed, and the proof showed that some of the land was in the W. 1/2 of the 40, and the plaintiff showed color of title and a previous...
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