Williams v. Oates

• Citation: 102 So. 712,212 Ala. 396
• Decision Date: 18 December 1924
• Docket Number: 4 Div. 126
• Parties: WILLIAMS et al. v. OATES.
• Court: Alabama Supreme Court

102 So. 712

212 Ala. 396

WILLIAMS et al. v. OATES.

4 Div. 126

Supreme Court of Alabama

December 18, 1924

Rehearing Denied Jan. 22, 1925

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Action in ejectment by William C. Oates against Dan S. Williams and others. Judgment for plaintiff, and defendants appeal. Affirmed.

It is not error to refuse prayers or requested instructions covered or substantially covered by the instructions given.

The action was brought by the plaintiff against Dan Williams with summons to D.C. Carmichael and B.F. Cummings, as landlords, who come in to defend.

In deraigning his title to the land in suit plaintiff introduced in evidence the following instruments and documents, which were admitted over objections respectively interposed by the defendants:

A copy of an entry on the records in the United States Land Office certified by the Register of the Land Office, showing the issuance of a patent to J.S. Arnold on May 25, 1885.

A certified copy of a deed from James Arnold and wife to J.W Powell, dated December 13, 1886.

A page from a book purporting to be the original record in the probate office, containing the record of a deed from J.W. Powell and wife to S.B. Youngblood, dated February 19, 1891.

A deed from S.B. Youngblood and wife to C.E. Sellers, dated February 2, 1892.

Record of summons and complaint in a suit, declaring on a promissory note, by B.G. Farmer v. C.E. Sellers, filed August 14, 1895, in the circuit court of Henry county, and minute entry in that case as follows:

"B.G. Farmer v. C.E. Sellers.

"September 26/95.

"Came the plaintiff by attorney, and the defendant came out, but made default, and, because the damages are uncertain, thereupon came a jury of good and lawful men, to wit, J.H. Armstrong, and eleven others, who on their oaths say they find for the plaintiff and assess his damages at $429.80. It is thereupon considered by the court that the plaintiff recover of the defendant the said sum of $429.80 and also the costs in this suit, for which let execution issue. Exemptions waived as to personalty."

A certified copy of a deed from J.M. Pilcher, as sheriff, to B.G. Farmer, dated August 16, 1897, and reciting that, "whereas, an execution issued from the circuit court of Henry county against C.E. Sellers in favor of B.G. Farmer on a judgment rendered in said court at the fall term thereof, 1895, for the sum of $429.80, besides costs of suit, which said execution came into my hands, as sheriff of said county, on the 12th day of July, 1897, to execute and return according to law, and whereas, other executions issued from the (sic) were also placed in my hands against said, (sic) to execute and return according to law, as will appear by reference to the records of said court by virtue of which execution above recited, as also the other said executions, I did as sheriff aforesaid levy upon the following as the property of said C.E. Sellers, to wit ***"; that notice of sale was given, the sale had; and that B.G. Farmer became the purchaser thereat, whereupon conveyance is made to said Farmer of the lands involved.

A certified copy of a mortgage from C.E. Sellers and wife to William C. Oates, dated April 11, 1894. As to this the plaintiff, as a witness, testified:

"I have not the original mortgage from C.E. Sellers and his wife to William C. Oates. I have searched for it diligently. I haven't it, and it is not among my papers anywhere. I do not know whether my father ever sold or transferred that mortgage, or not, or whether it was paid. To my knowledge it was not sold, transferred, or paid; nor does the record say so."

A certificate dated November 30, 1908, and signed by B.G. Farmer, auctioneer, reciting the foreclosure of the above mortgage on that date, and that William C. Oates became the purchaser at such foreclosure sale.

A contract, dated November 5, 1908, entered into by H.A. Powell, William C. Oates, and B.G. Farmer, reciting that Oates has a valid mortgage on the land from Sellers, which Oates agrees to foreclose and bid off the land for the amount of his debt, after which the contract is to become of force; that Powell has in his possession a deed to the land from one Pelham and, in his chain of title, a deed from Pilcher, as sheriff, to Farmer, and a deed from Farmer to Pelham; that Powell has pending a suit in the name of Farmer against Sellers for possession of the land, and other suits involving the land--all which suits Powell agrees to dismiss; that Farmer shall be relieved of any obligation as to costs in such litigation, and in turn releases any claim he may have upon the land. By this instrument Oates conveys to Powell, and Powell conveys to Oates, an entire undivided one-half interest in the land, "in such a way and to such an extent that upon the execution of this contract the said Oates shall own without lien or incumbrance, in so far as the said Powell and Farmer are concerned, an entire undivided one-half interest in and to" said land, "and the said Powell upon the execution of this contract shall own without lien or incumbrance, in so far as the said Oates and Farmer are concerned, an entire undivided one-half interest in and to said land."

A deed from Powell to Farmer, dated December 10, 1910, and conveying a one-fourth interest in the land.

A plat of the land in suit. As to this one Jenkins testified that he was a surveyor; that he prepared the plat, which was a correct plat of the land at the time; that he prepared it in 1911 or 1912 for the plaintiff, Powell and Farmer. The plaintiff, as a witness, testified that this plat was delivered to him by Powell and Farmer at the time or just before these parties delivered to him a deed to the land.

A deed, dated February 8, 1913, from H.A. Powell and wife and B.G. Farmer and wife to William C. Oates (plaintiff), conveying the land in question.

Farmer, Merrill & Farmer, of Dothan, for appellants.

T.M. Espy and L.S. Hodnett, both of Dothan, and Hill, Hill, Whiting, Thomas & Rives, of Montgomery, for appellee.

THOMAS J.

The affirmative charge was requested by and denied to defendants in this statutory action in the nature of ejectment. A phase of this case was before the court in Williams v. Oates, 209 Ala. 683, 96 So. 880. The appellants state they defend under and by virtue of a tax title, coupled with the fact that they were in possession of the land and remained in possession of it for more than three years after the purchaser at the tax sale became entitled to demand a deed therefor. Thus are presented the merits of appellants' claim, if they are to prevail in this suit.

Several questions arose on the introduction of evidence, and rulings thereon are presented for review. The assignments of error insisted upon will be considered. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158.

The evidence is silent as to the possession of the ancient deeds admitted in evidence. In the absence of proof to the contrary, or suspicious circumstances, said deeds are presumed to have been retained by the respective grantees therein. Under such state of the evidence a duly certified transcript of the record thereof was properly received in evidence to prove the deed. Ray v. Farrow, 211 Ala. 445, 100 So. 868; McMillan v. Aiken, 205 Ala. 35, 88 So. 135. The proper predicate was required in Driver v. Fitzpatrick, 209 Ala. 34, 95 So. 466, to authorize, under the statute (Code 1907, § 3374), the introduction in evidence of plaintiff's deed from his grantee. This holding was consistent with the line of cases having application. In Acree v. Shaw, 202 Ala. 433, 80 So. 817, it was the deed to plaintiff's ancestor (made nine years before the suit) which was sought to be introduced in evidence; in Florence Land, Mining & Mfg. Co. v. Warren, 91 Ala. 533, 9 So. 384, a tax deed was offered. Judge Stone there declared that, in the absence of all proof to the contrary, the law presumes the deed remains with the grantee, and made the observation that there was nothing in the evidence tending to raise any other presumption as to the custody of the deed in question. In the case of Beard v. Ryan, 78 Ala. 37, the proof was of an ancient deed, and record copies were properly received. The holding in Hendon v. White, 52 Ala. 597, was that the title deeds of a defendant whose estate had been sold and conveyed under compulsory legal process are not presumed to be in the possession or under the control of the purchaser, and the latter need only introduce a duly certified transcript of the record of the deed, without accounting for the original. There was no error in admitting in evidence certified copies of the record (or the record itself) of the deeds from the Arnolds to J.W. Powell, the record of deed from Powell and wife to S.B. Youngblood, the original deed from said Youngblood and wife to C.E. Sellers, and the mortgage from said Sellers and wife to William C. Oates. As to the latter instrument due predicate was laid, showing that plaintiff did not have the custody or control of said conveyance.

The agreement between Farmer, Powell, and Oates, of date November 5, 1908, was introduced in original form; also the original warranty deed and plat from Powell and Farmer to plaintiff Oates. Aside from the mortgage, these were the only conveyances passing to plaintiff or his ancestor. As to those there was compliance with section 3374 of the Code of 1907, as construed in Acree v. Shaw, 202 Ala. 433, 80 So. 817, in the respects for which they were challenged. Oates testified the map prepared by authority was delivered to him by the grantees in the deed just before the delivery of the warranty deed of Farmer & Powell. It did not depend upon the statute (section 6028 of the Code of 1907) for...