White v. Farris

• Court: Supreme Court of Alabama
• Writing for the Court: DOWDELL, J.
• Citation: 124 Ala. 461,27 So. 259
• Parties: WHITE ET AL. v. FARRIS.
• Decision Date: 16 January 1900

27 So. 259

124 Ala. 461

WHITE ET AL. v. FARRIS.

Supreme Court of Alabama

January 16, 1900

Appeal from circuit court, Geneva county; J. W. Foster, Judge.

Action by J. J. Farris against White, McLane & Morris to recover a penalty for trees cut by defendants on plaintiff's land. From a judgment for plaintiff, defendants appeal. Reversed.

This action was brought by the appellee against the appellants. The facts of the case, and the rulings of the trial court upon the evidence which are reviewed on the present appeal are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the following written charges "(1) If the jury believe from the evidence that the advertisement made by the tax collector of the sale of the land in question, if there was an advertisement, described the land as being partly in township 1, and partly in township 6, then the tax sale, if there was one, made upon such advertisement, was void. (2) If, upon the instruction given you in charge, you shall find from the evidence either that all the lands sold for taxes in the county for the year 1894 were sold under one general decree, covering all the lands of various persons sold that year, or that the statutory affidavit of the tax collector was not made, or that the numbers of the land as advertised were different from the numbers of the land in question, in either even the sale, if there was one, of the land assessed to B. Bullard was void." The defendants separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges requested by them: "(a) The jury should consider the whole evidence in the cause. If, upon so doing, they are reasonably persuaded that the defendants in 1894 entered upon the land upon which the trees were cut, under a certificate of purchase of the land, at tax sale, which certificate from the tax collector contained a description of the land, and thereupon took possession of the same, claiming it as their own, and subsequent thereto, while in the actual, notorious and adverse possession of the land, if they were in such possession, cut the trees in question, actually and bona fide believing they owned the land and had a right to cut the trees, then they should find for the defendants. (b) If the jury believe from the evidence that the defendants, White, McLane & Morris, bought at a tax sale made by the tax collector of Geneva county, Alabama, in May, 1894, the land described in the complaint, and at the sale they received from the tax collector a certificate of purchase in the usual form, and under the certificate they (the defendants), in good faith, believing they had the legal right to do so, went into the actual possession of the land, and that they remained in possession of the land, and that they were at the time they cut the timber in the actual possession of the land, under the purchase at tax sale, and were in good faith claiming and asserting title to the land, the jury should find for the defendants. (c) If at the time the trees were cut the defendants were in possession of the land under color and claim of title, and were bona fide and in good faith claiming and asserting title to the land, and were in open, adverse possession of the land, under color and claim of title, the jury should find for the defendants." "(e) If the jury believe the evidence, they will find for the defendants. (f) The court charges the jury that if at the time of the alleged cutting of the trees in controversy the defendants were in actual, notorious, adverse possession of land upon which the trees grew, claiming it, bona fide, as their own, and asserting title thereto under tax title, then they should find for the defendants. (g) If the jury believe from the evidence that defendants were in adverse possession, under claim or color of title, of the land upon which the trees were cut, at the time of cutting the trees, then their verdict should be for the defendants. (h) The court charges the jury that if defendants entered upon the land upon which the trees were cut under a tax certificate of sale of said land, or upon a tax deed to said land, then they (the defendants) entered upon claim of title." There were verdict and judgment for the plaintiffs. The defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

P. N. Hickman and Morris & Carmichael, for appellants.

Claude Riley, W. O. Mulkey, and Sollie & Kirkland, for appellee.

DOWDELL J.

This is an action commenced by the appellee (plaintiff in the court below) to recover of the defendants the statutory penalty for the cutting of certain trees on plaintiff's land. On the trial of the cause, by agreement of parties, the general issue was pleaded in short by consent, with leave to give in evidence any matter which might be specially pleaded. The plaintiff, in support of the averment in the complaint of his ownership of the land upon which it was alleged that the trees were cut, offered the following documentary evidence of title: A patent from the general government to one Jesse W. Tucker, a deed from Jesse W. Tucker and wife to A. B. Bullard, a deed from A. B. Bullard to Bartow Bullard, and a deed from Bartow Bullard and wife to J. S.W. Cawthorn, and a deed from Cawthorn and wife to the plaintiff. The deed from Jesse W. Tucker and wife to A. B. Bullard was objected to by the defendants upon the ground that there was no attesting witnesses, and, though duly acknowledged, it had not been recorded within the time prescribed by the law to make it self-proving, and there being no proof of its execution. This deed bore date of December 17, 1860, and was therefore more than 30 years old at the time of the trial when it was offered in evidence. The deed was in the custody of the plaintiff, and it was also shown in connection with the offer of the same in evidence that the plaintiff received it from his immediate grantor, Cawthorn, who claimed it as a part of his chain of title; and it was further shown that A. B. Bullard, the grantee in this deed, had been dead for four or five years, but that during his lifetime, while he was claiming the land in question, he appointed on Earl as his agent to look after the same, and that said agent for 10 or 12 years gave in said land for taxation for A. B. Bullard, and paid the taxes on same for him. There was no evidence that either Bullard or Cawthorn were ever in the actual possession of said land; the evidence showing that the land was wild, uninclosed timber land, having no improvements on it. The deed unquestionably comes within that class denominated "ancient documents," and which are admitted in evidence without proof of execution,-their admissibility as ancient documents being based upon the presumption and theory that the attesting witnesses are dead; and so well established has become this doctrine and principle, that it is not changed or varied, though the attesting witnesses in fact be shown to be alive.

It is contended by appellants that, in order to render the deed admissible in evidence, it was necessary, in the absence of proof of its execution, in connection with it as an ancient document, to prove enjoyment under it, or other equivalent explanatory proof; citing Beall v. Dearing, 7 Ala 124; Farmer's Heirs v. Eslava, 11 Ala. 1028; Carter v. Chaudron, 21 Ala. 72; Alexander v. Wheeler, 78 Ala. 167. The deed here offered was without any suspicious circumstances whatever attaching to it. It was a link in the chain of title. It is found in proper custody, and was received by the plaintiff from his immediate grantor, who was at the time the proper custodian of it. This, in connection with the proof that the lands in question were wild and uninclosed lands, with no improvements thereon, and that Earl, as the agent of A. B. Bullard, the grantee in the deed, looked after the lands and paid the taxes on the same for said Bullard for 10 or 12 years prior to the time Bullard sold it in 1889,-acts referable to the title,-was sufficient, as corroborative evidence, to admit the deed as an ancient document, without other proof of its execution. This view, we think, is clearly sustained in Farmer's Heirs v. Eslava, supra, where, on page 1040, it is said: "An ancient deed (that is, one more than 30 years old), having nothing suspicious about it, is presumed to be genuine, without express proof; and if it is...