Woods v. Montevallo Coal & Transportation Co.

• Decision Date: 04 January 1888
• Citation: 3 So. 475,84 Ala. 560
• Court: Alabama Supreme Court
• Parties: WOODS v. MONTEVALLO COAL & TRANSP. CO.

3 So. 475

84 Ala. 560

WOODS v. MONTEVALLO COAL & TRANSP. CO.

Supreme Court of Alabama

January 4, 1888

Appeal from circuit court, Shelby county; S. H. SPROTT, Judge.

This action was brought by Thomas A. Woods against the Montevallo Coal & Transportation Company for the recovery of land specifically described in the complaint. Issue was joined on the plea of the general issue and the special plea of the statute of limitations of 10 years, constituting adverse possession. The plaintiff based his right of recovery upon his title arising from a grant of the lands in controversy by the general government, and introduced in evidence the original patent from the government to him, dated June 1 1857. The defendant offered in evidence, "without proof of its execution," a bond for title from Thomas Woods to the Alabama Coal-Mining Company, from which company the defendant claims by subsequent and intervening deeds. This bond for title was dated December 21, 1855. To show that the purchase money, as provided for in the said bond for title had been paid, the defendants introduced in evidence the record of the court proceedings in the case of Thomas Woods v. Alabama Coal-Mining Co., which were had in 1859. The defendant also introduced in evidence "the original receiver's recertificate of purchase, dated Tuscaloosa, Ala., December 20, 1854, to the plaintiff, Thomas Andrew Woods, for the lands in controversy." But there was no written transfer of this certificate. The defendant also introduced a receipt from Thomas Woods, purporting to be executed by said Woods' attorneys, to the Alabama Coal-Mining Company, for a portion of the purchase money as agreed upon in the bond for title above referred to. The plaintiff objected to the introduction of the bond for title, the record of the court proceedings the receiver's certificate of purchase, and the attorney's receipt given for Thomas Woods to the Alabama Coal-Mining Company, and to the giving of each and all of them he excepted severally and separately. The defendant introduced as a witness in its behalf one James Harris, who was asked, among other questions, "Was it not during such time generally understood and known in the vicinity where the lands in dispute are situated that the Alabama Coal-Mining Co. claimed them as their own?" The plaintiff objected to the question, the court overruled the plaintiff's objection, and he then and there excepted. The defendant asked the following charge, which was in writing, and which was given: "If the jury believe, from the evidence, that the Alabama Coal-Mining Company obtained from Thomas Woods, in 1855, the contract given in evidence and from thence on they claimed the lands involved in this suit under said contract; and that, in 1863, said company sold these lands and others, including those upon which is included the 'Irish Pit,' testified about, and conveyed the same to the Montevallo Coal-Mining Company, and that that company conveyed all of said lands to the Central Mining & Manufacturing Company, in 1867; and that each of said companies was in the actual possession and occupation of said lands upon which the 'Irish Pit' is situated, and during all of said time openly and notoriously claimed title to the lands in controversy under their said deeds; and that such claim of title, while said lands were so claimed and occupied, was generally known in the neighborhood; and if they further believe that plaintiff resided in said neighborhood while said companies claimed said title, and that for more than ten years before the commencement of this suit defendant, and those from whom it derives title, were in the actual occupancy, controlling the lands upon which the pit, known as the 'Irish Pit,' is situated, claiming the same as theirs under said deed, and not recognizing the title of plaintiff, then they must find for the defendant, although they believe the Montevallo Mining Company had a title to said 'Irish Pit,' and have to the lands sued for." To the giving of this charge the plaintiff duly excepted. The cause comes before this court for review upon the alleged errors as enumerated above.

C. G. Wagner, John T. Heflin, and W. S. Cary, for appellant.

H. C. Tompkins and Wilson & Lymon, for appellee.

SOMERVILLE J.

1. The bond for title purporting to be executed by Thomas Woods on December 1, 1855, or nearly 30 years prior to the commencement of this action, was properly admitted in evidence, in connection with the other proof showing the payment to him by the vendee of the purchase money due for the land. It came from one claiming an interest in the land, unaccompanied by any circumstance casting suspicion on its genuineness. It was admissible, therefore, without any proof of its execution, and without preliminary proof of possession under it, if otherwise revelant, an inquiry which we next consider. White v. Hutchings, 40 Ala. 253; England v. Hatch, 80 Ala. 247; 1 Greenl. Ev. § 144, note 3; Starkie, Ev. (Shars.) 521-523.

2. Where a vendee of land pays the purchase money due by him to the vendor, his possession under a bond for title at once commences, presumptively, to be adverse. Beard v. Ryan, 78 Ala. 37; Morgan v. Casey, 73 Ala. 222; Drew v. Towle, 30 N.H. 531, 64 Amer. Dec. 309. Such a written instrument, therefore, although executed by one having no title or authority to convey, and unrecorded, would be good as color of title to show the character and extent of the possession asserted and the intent with which such possession is taken. Standifer v. Swann, 78 Ala. 88; Ladd v. Dubroca, 61 Ala. 25; Ang. Lim. § 404, notes 1, 2; Lea v. Copper Co., 21 How. 493.

3. The record of the court proceedings in the case of Thomas Woods v. Alabama Coal-Mining Co. was competent to show a collection by process of law of the purchase money due on the land, the parties to that suit being respectively the vendor and vendee in the bond for title. The receipt, purporting to be executed by the attorneys of record for the plaintiff in that action, acknowledging the satisfaction of the judgment, being over 20 years of age, proved itself, and was admissible to show such payment, a like rule applying to receipts as to other ancient writings. Starkie, Ev. (Shars.) *523, *524. These proceedings were not res inter alios acta, because the existence and satisfaction of the judgment affected the status of the defendant in that judgment towards the lands in controversy, and the defendant in this suit derives title from that corporation. Where one claims in privity with another, whether by blood, estate, or law, he is in the same situation with such person as to any judgment for or against him, for judgments bind privies as well as parties.

4. The receiver's original certificate of purchase, although taken out in the name of the plaintiff, and not assigned by him in writing, being in the possession of the defendant, was presumptively there by lawful transfer, and was admissible at least to show color of title, and to subserve the function of an instrument of that character. The plaintiff, moreover, is in no condition to object to the admissibility of such certificate, as it tended also in one aspect to support his title.

5. The testimony of Holt sufficiently proved the probable loss of the deed to him from Williams to authorize the introduction of secondary evidence of its contents. To justify the admission of such evidence, it is not necessary to prove the loss of the document beyond all possibility of mistake. A reasonable probability of its loss is sufficient, which may be shown by a bona fide and diligent search fruitlessly made for it in places where it was likely to be found. U. S. v. Sutter, 21 How. 170.

6. While the existence of a fact cannot be proved by reputation or notoriety, yet, when the fact is otherwise established, its general notoriety in a neighborhood may be proved as competent evidence to charge one resident in such vicinity with knowledge of it. Humes v. O'Bryan, 74 Ala. 64, 81; Price v. Mazange, 31 Ala. 701. Under this rule the question propounded to the witness Harris, and the answer elicited, were relevant.

7. It is not denied that the plaintiff is entitled to recover in this case, unless the defendant and those under whom it claims are shown to have had an adverse possession of the lands in controversy for at least 10 years before the commencement of the suit, and under such circumstances as to operate as a bar to the action under the influence of the statute of limitations. The title of the plaintiff...