Wootten v. Austin

• Decision Date: 30 June 1928
• Docket Number: 7 Div. 786
• Citation: 117 So. 652,218 Ala. 156
• Parties: WOOTTEN v. AUSTIN et al.
• Court: Alabama Supreme Court

117 So. 652

218 Ala. 156

WOOTTEN v. AUSTIN et al.

7 Div. 786

Supreme Court of Alabama

June 30, 1928

Appeal from Circuit Court, De Kalb County; W.W. Haralson, Judge.

Action in ejectment by W.B. Austin and Catherine Austine against S.D. Wootten. Judgment for plaintiffs, and defendant appeals. Affirmed.

John B Isbell, of Ft. Payne, for appellant.

Lee S Baker, of Ft. Payne, for appellees.

GARDNER J.

Statutory action of ejectment by appellees against appellant for the recovery of 6 7/10 acres of land in De Kalb county. The cause was tried before the court on oral testimony without a jury resulting in a judgment for the plaintiffs, from which defendant prosecutes this appeal.

There were missing links in the chain of title of the respective parties to this cause, and a complete record title was therefore not shown. No occasion arises for a recital of the deeds offered by the parties and their claim of title, as no questions are presented thereon.

Plaintiffs' evidence tended to show that they and their predecessors in title had been in adverse possession of the property under color of title sufficient to perfect title for a period of 70 years, while defendant's evidence tended to show he had held adversely under color of title for more than 20 years as to some of the land, and more than 10 years as to all.

The case seems to have resolved itself into a simple question of fact upon the issue of adverse possession. Upon this issue the evidence was in conflict, a discussion of which would serve no useful purpose. Suffice it to say that upon due consideration of the same by the court in consultation, the court concludes that the evidence for plaintiffs amply justifies the judgment of the court below.

As we read the brief of counsel for appellant, this is the only assignment of error there insisted upon. The first three assignments of error are so general in character as to call for no consideration here. Supreme Court Rule 1; vol. 4, Code 1923, p. 880; Hall v. Pearce, 209 Ala. 397, 96 So 608. Indeed, they are not insisted upon in brief, and therefore waived. Syllacauga Land Co. v. Hendrix, 103 Ala. 254, 15 So. 594; Bransford v. Glennon, 216 Ala. 72, 112 So. 341.

We construe assignments of error 4 and 5 to call in question the action of the court in rendering judgment for the plaintiffs to which we have above referred. The sixth and last assignment relates to the overruling of defendant's motion...