Opinion
7 Div. 884.
November 15, 1917. Rehearing Denied January 24, 1918.
Appeal from Circuit Court, Etowah County; John H. Disque, Judge.
J. S. Franklin, of Gadsden, for appellants. Motley Motley, of Gadsden, for appellee.
The plaintiff offered no proof to show that his grantor or those through whom he claimed title had ever had possession of the property sued for, nor did he offer proof tending to show complete title in his grantor. For the purpose, therefore, of making out a prima facie case for recovery, plaintiff rested — we presume, upon proof of prior actual possession, under the rule announced in Dodge v. Irvington Land Co., 158 Ala. 91, 48 So. 383, 22 L.R.A. (N.S.) 1100; also Louisville Nashville R. R. Co. v. Philyaw, 88 Ala. 264, 6 So. 837; Vidmer v. Lloyd, 193 Ala. 386, 69 So. 480, Ann. Cas. 1917A, 576.
The evidence upon the question of the prior actual possession of the plaintiff has been carefully considered by the court in consultation, and we have reached the conclusion that the testimony was insufficient in this respect to make out a prima facie case for the plaintiff under the principle of the above-cited authorities. We therefore conclude there was error in the trial court entering judgment for the plaintiff, and, in the exercise of our discretion, we think it advisable to remand the cause for another trial, rather than render judgment here. The judgment will be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.