Weaver v. Blackmon

• Decision Date: 26 March 1925
• Docket Number: 7 Div. 490
• Citation: 103 So. 889,212 Ala. 681
• Parties: WEAVER et al. v. BLACKMON.
• Court: Alabama Supreme Court

103 So. 889

212 Ala. 681

WEAVER et al. v. BLACKMON.

7 Div. 490

Supreme Court of Alabama

March 26, 1925

Rehearing Denied April 30, 1925

Appeal from Circuit Court, Calhoun County; S.W. Tate, Judge.

Action in ejectment by Elisha V. Weaver, Mollie W. Hanna, and Sarah M. Weaver against Ross Blackmon. Judgment for defendant, and plaintiffs appeal. Affirmed.

Lapsley & Carr, of Anniston, for appellants.

Knox Acker, Sterne & Liles, of Anniston, for appellee.

MILLER J.

This is an ejectment suit for an undivided three-eights interest in 330 acres, more or less, of land, by Elisha V. Weaver, Mollie Weaver Hanna, and Sarah M. Weaver against Ross Blackmon. The defendant pleaded general issue, adverse possession of the land for more than 10 years before the suit was commenced and adverse possession of the land for more than 20 years before filing of the suit. The jury returned a verdict in favor of the defendant, and, from a judgment thereon by the court, this appeal is prosecuted by the plaintiffs.

The court gave the general affirmative charge with hypothesis in favor of the defendant, which he requested in writing. There are 23 errors assigned. Nearly all relate to rulings of the court on admission of evidence over objection of plaintiffs. If, under the legal evidence offered and admitted, the affirmative charge with hypothesis was correctly given by the court, then the other errors, if any, of the nature noted were without injury to the plaintiffs, and we need not discuss and consider them. Water Co. v. Mobile, 125 Ala. 178, 27 So. 781; Ala. Red Cedar Co. v. Tenn. Val Bk., 200 Ala. 622, headnote 6, 76 So. 980; Merriweather v. Sayre M. & M. Co., 182 Ala. 666, 62 So. 70; New Brunswick Fire Ins. Co. v. Nichols, 210 Ala. 63, 68, 97 So. 82.

The record, the motion for new trial, and briefs of the parties present practically and primarily one question: Did the court err in giving that general charge for the defendant?

The plaintiffs claim title to a three-eighths interest in this land through deed from their father, Elisha V. Weaver. They introduce two deeds conveying this land to their father, both dated September 21, 1860, one executed by Nathaniel Easterwood and the other by Jemima Easterwood; one names the consideration $3,000, and the other states for value received.

The evidence shows their father went into and continued in possession of this land under these conveyances until his death in August, 1887. These deeds were duly filed and recorded on the dates they were executed. The father of the plaintiffs signed a deed on April 20, 1886, conveying this land to his 7 children and his stepchild by his first wife. This conveyance was probated by one of the subscribing witnesses on December 6, 1887 after the grantor's death, and it was filed for record on December 6, 1887.

It is questionable under the evidence whether the grantor ever delivered this conveyance to the grantees. There is no evidence as to a delivery of it during his lifetime. But this is immaterial, as there is no doubt from the evidence that the legal title to some interest in the land vested at one time in the plaintiffs. If by this conveyance, then one-eighth interest each; and if by inheritance from their father, then one-seventh interest each. Their father was married twice. His first wife was a widow with one child, Emma F. Wright, at the time he married her. There were 4 children of this marriage. This wife died, and he married again, and there were 3 children by this marriage--the plaintiffs in this case. This conveyance by Elisha V. Weaver named this stepchild and his 7 children as grantees. Four were minors at the time, and Thomas S. Weaver, a son, was named as trustee therein for them. Three of the minors were the plaintiffs in this cause. The plaintiffs were born as follows: Elisha V. Weaver in 1875, Mollie Weaver Hanna in 1872, and Sarah Weaver in 1878.

The evidence for the plaintiffs made out a prima facie case showing plaintiffs each owned at one time from their father either an undivided one-eighth or one-seventh interest in this land, and were entitled to the possession of it. This shifted the burden of proof on the defendant to establish his defense--a superior title by adverse possession. Plaintiffs show no possession by them of the land, but do show a legal title to some interest in the land, and the right to possession of it when the suit was commenced on June 30, 1923, which makes out a prima facie case entitling them to recover. Carpenter v. Joiner, 151 Ala. 454, 44 So. 424.

There was evidence for the defendant that the plaintiffs' father used the money of his first wife in purchasing this property, and at his death her 5 children claimed this land, but agreed for the administrator of his estate to use the rent for 3 years from 1887 to 1890, after his death, to aid in paying his debts; and in 1890 these 5 children of his first wife went into possession of this land, claiming the whole of it, collecting and retaining the rents from it, annually, from 1890 to 1903. Elisha Weaver, one of the plaintiffs, was informed by his half-brother that this land was purchased by their father with money of his first wife, and that the plaintiffs, the children of the second wife, had no interest in this land; that it belonged to the children of the first wife; and that the plaintiffs never received any rent from it at any time.

In July, 1902, S.E. Weaver, a son by the first wife, sold and conveyed an undivided one-fifth interest in this land to S.G. Wright, who had married his sister, Emma Weaver. Mattie Weaver, daughter of the first wife, married G.W.S. Lloyd. These 5 children of the first wife of Weaver, deceased, were in continuous and exclusive possession of this land, collecting and using all the rents, from 1890 until they sold and conveyed it to T.J. Jones on January 2, 1903. This conveyance purported to convey to Jones the entire title to the lands in controversy. Jones, the grantee, in person or by tenants, was in continuous and adverse possession of this land from his purchase of it in 1903 until he sold and conveyed it by deed to George W. Eichelberger on December 16, 1911, and this deed purported to convey the entire fee in the land to the grantee. Eichelberger, in person or by tenants, was in continuous and adverse possession of this land from his purchase of it until he sold and conveyed it on December 15, 1913, to the defendant, Ross Blackmon. This deed purported to convey the entire title in the land. Blackmon, in person or by tenants, was in continuous and adverse possession of this land from his purchase of it in 1913 until this suit was commenced on June 30, 1923. The deed to Jones was duly recorded on January 28, 1904, the deed to Eichelberger was duly recorded on December 28, 1911, and the deed to Blackmon was duly recorded on December 24, 1913.

The parties agreed that this land was annually listed for taxes from 1903 to 1911, both inclusive, by T.J. Jones, for 1912 and 1913, by G.W. Eichelberger, and from 1914 to 1923, both inclusive, by Ross Blackmon, and the taxes on it for each of the years named were paid by the respective persons to whom it was respectively assessed.

All of the plaintiffs were of age in 1899. This suit was commenced on June 30, 1923. This was more than 23 years after the youngest plaintiff arrived at the age of majority. This was more than 20 years after T.J. Jones purchased by deed the entire title to this land on January 2, 1903, and went into adverse possession of it. Elisha V. Weaver, one of the plaintiffs, testifying in his own behalf stated:

"I left the state of Alabama in 1896, some 9 or 10 years after the death of my father; Mrs. Hanna left the state about the year 1902. Sarah Weaver left Alabama about 1894 or 1895 and afterwards came back to live a few years here, and then went black to Oklahoma in 1902, and has since been a resident of Oklahoma. She left here about 1894 and returned a few years later, about 1898, and then lived here until 1902; I believe she left the state a little before Mrs. Hanna did. I do not know who was in possession of the land involved in this suit in 1896; I was not in possession of it, and have never received or collected any rent from

it, and have never been in possession. Neither Mrs. Hanna or Miss Weaver were ever in possession of the land to my knowledge, nor did they receive any rent from it, nor pay any taxes or assess it for taxes." The "Mrs. Hanna and Miss Weaver" mentioned by him are the other plaintiffs in the case. Elisha V. Weaver in his testimony also stated:

"T.S. Weaver *** before I left here *** told me that his mother's money paid for this place, and that it belonged to the heirs of his mother. *** He told me that this Clear Creek farm was paid for by the money that belonged to his mother, which I couldn't dispute; I didn't know. In each and every conversation I

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