4 Div. 213.
May 14, 1942. Rehearing Denied May 20, 1943.
Appeal from Circuit Court, Covington County; Robt. S. Reid, Judge.
Action of ejectment by E. M. Butler against Jackson Lumber Company. From a judgment for plaintiff, defendant appeals.
The following charges were refused to defendant:
"1. The Court charges the jury that if they are reasonably satisfied from all the evidence in this cause that the deed upon which the plaintiff relies for color of title has not been recorded in the office of the Judge of Probate of Covington County, Alabama for at least ten years prior to the date of the filing of this suit, then the plaintiff cannot prosecute a claim for adverse possession based on such deed."
"4. The Court charges the jury that if they find from the testimony that the possession of the property sued for has been open, notorious, adverse, and exclusive, in the Jackson Lumber Company and its tenants for ten years next before the commencement of the present suit they must find for the defendants."
"10. The Court charges the jury that if they are reasonably satisfied from all the evidence in this case that defendant, Jackson Lumber Company, or those through whom it claims, held possession of the lands sued for adversely to plaintiff or his predecessors in title, at the time the deed of A. M. Butler and wife to W. E. Butler was executed then the plaintiff cannot recover and you should return a verdict for the defendant."
"15. The Court charges the jury that if you are reasonably satisfied from all the evidence in this cause that plaintiff was not the sole owner of the legal title through which he claims then you cannot return a verdict for the plaintiff."
"18. The Court charges the jury that the possession of land by the defendant, and those under whom it claims, hostile to the title of the plaintiff is adverse possession, and such actual possession being equivalent to notice that the defendant, and those under whom it claims, are claiming adversely."
Among the errors assigned were the following:
10. The trial court erred in refusing to give written charge No. 11 requested by appellant, as follows: "11. The Court charges the jury that if they are reasonably satisfied from the evidence in this cause that the true name of the plaintiff is M. E. Butler and not E. M. Butler, then there is a variance between the allegations of the complaint and the proof and in which event the plaintiff, E. M. Butler, as designated in the complaint, would not be entitled to recover."
11. The trial court erred in refusing to given written charge No. 12 requested by appellant, as follows: "12. The Court charges the jury that the names E. M. Butler and M. E. Butler are not the same, and proof of title and right of possession in M. E. Butler is not equivalent to proof of title and right of possession in E. M. Butler."
12. The trial court erred in refusing to give written charge No. 13 requested by appellant, as follows: "13. The Court charges the jury that if you are reasonably satisfied from the evidence that M. E. Butler and not E. M. Butler is the name of the plaintiff in this cause then you cannot return a verdict for the plaintiff."
25. The trial court erred in refusing to allow the witness H. G. Huggins to answer the following question: "Did Jackson Lumber Company during the time it has had it been claiming it as its own — was it," and in sustaining appellee's objection thereto, to which action of the court the appellant then and there duly excepted.
28. The trial court committed error in overruling appellant's objections to questions propounded to the witness, J. E. Powell by appellee which tended or attempted to show a dispute between plaintiff's mother and J. M. Powell (appellant's predecessor in title) to which action of the court the appellant duly excepted.
29. The trial court committed error in allowing introduction of testimony as to assessment of the lands in question during 1914, 1915, 1916, 1917, 1918 and 1919 by or in the name of M. E. Butler, over objections of the appellant, to which action of the court the appellant duly and legally excepted.
33. The trial Court committed error in allowing the witness Cleve Barnes, in answer to question propounded to him by appellee, to state the substance of an agreement between J. M. Powell and Winnie Butler, and not overruling objections of appellant to questions propounded by appellee, to which action of the court appellant duly and legally excepted, and which questions, answers, objections and grounds thereof, the ruling of the court and exception are set forth on pages 62 and 63 of the transcript.
36. The trial court erred in overruling appellant's motion to exclude all testimony offered on behalf of the appellee which showed title or chain of title or claim in M. E. Butler or those through whom he claimed prior to the occupancy of J. M. Powell, to which action of the court in overruling said motion the appellant duly and legally excepted.
Mizell Pearson, of Andalusia, for appellant.
Plaintiff admittedly did not own the entire legal title, failing to account for the outstanding interest of Holland Ward. Defendant had the right to set up this outstanding title. Plaintiff was not entitled to a verdict. Swindall v. Ford, 184 Ala. 137, 63 So. 651; Stephenson v. Reeves, 92 Ala. 582, 8 So. 695; Blair v. Blair, 199 Ala. 480, 74 So. 947; Tapia v. Williams, 172 Ala. 18, 54 So. 613. Plaintiff injected into the case an attempt to support his claim of right of possession against defendant by adverse possession. Defendant was entitled to have the jury instructed as to the requirements of the statute to constitute adverse possession. Code 1923, § 6069; Code 1907, § 2830; Code 1896, §§ 1541-1547. In action of ejectment the legal title only is involved. Plaintiff can recover only on a superior legal title. Blair v. Blair, supra; Jones v. Wild, 186 Ala. 540, 65 So. 349. The overwhelming evidence supports defendant's claim of adverse possession. The notice filed by Powell for record shows his possession began in 1871, and he conveyed to defendant in 1938. Code 1896, §§ 1541-1547. The motion for new trial should have been granted. Birmingham News Co. v. Lester, 222 Ala. 503, 133 So. 270. The complaint being drawn in the name of E. M. Butler, and no such person being connected with the title, there was a material variance. First Nat. Bank v. Hacoda Mer. Co., 169 Ala. 476, 53 So. 802, 32 L.R.A., N.S., 243, Ann.Cas. 1912B, 599; Tenn. C. I. R. Co. v. George, 161 Ala. 421, 49 So. 681. Charge 4 is a correct statement and should have been given. Stiff v. Cobb, 126 Ala. 381, 28 So. 402, 85 Am.St.Rep. 38. It was error to refuse charge 18. Gerald v. Hayes, 205 Ala. 105, 87 So. 351. Defendant should have been allowed to introduce evidence of acts of ownership. United States Lbr. Cot. Co. v. Cole, 202 Ala. 688, 81 So. 664. The deed from Rigdon to Butler and Holland was erroneously admitted. First Nat. Bank v. Johnson, 190 Ala. 566, 67 So. 234; Grant v. Nations, 172 Ala. 83, 55 So. 310. Parol evidence of a written agreement is secondary evidence, and may only be used where there has been a full compliance with requirements of the law in the circumstances. Barbour v. Cantrell, 193 Ala. 154, 69 So. 67; St. Louis H. G. Co. v. American C. I. P. Co., 167 Ala. 442, 52 So. 904; 22 C.J. 986; A. B. A.L.R. Co. v. Wood, 160 Ala. 657, 49 So. 426. The alleged agreement related to settlement of a lawsuit pertaining to this land and must have been in this court. The record of said suit was the only proper evidence as to the dispute. Duncan v. Freeman, 109 Ala. 185, 19 So. 433; Whitaker v. Kennamer, 229 Ala. 80, 155 So. 855. Title may not be established by parol. Townley v. Birmingham Fuel Co., 200 Ala. 654, 77 So. 28.
Murphy Cook, of Andalusia, for appellee.
Diligent search for lost paper by person with whom it was entrusted and by party owning paper at every place where he thought it might be, is sufficient predicate for introduction of record. Laster v. Blackwell, 128 Ala. 143, 30 So. 663. Party claiming title by adverse possession based on color of title to prove outstanding title in stranger must do so by definite and specific evidence as to who stranger is and his interest. Stephenson v. Reeves, 92 Ala. 582, 8 So. 695. Possession of land by husband after death of wife cannot be adverse, but permissive by virtue of his curtesy. Hinton v. Farmer, 148 Ala. 211, 42 So. 563, 121 Am.St.Rep. 63. One holding under the title of another does not begin to hold adversely until disclaimer of title and notice thereof. Dothard v. Denson, 72 Ala. 541. Imputation of laches in cases of adverse possession is based entirely on knowledge of the owner, either actual or implied, and failure after such knowledge to act. Lecroix v. Malone, 157 Ala. 434, 47 So. 725. Once the seisin is proved to be in one, it will be presumed to continue in that person until the presumption is overthrown by proof of facts inconsistent therewith. Tiedman, Real Prop., 3d Ed., 706. There is no presumption that possession of real estate is adverse. Monk v. Wilmington, 137 N.C. 322, 49 S.E. 345. And where character of possession — subordinate or adverse — is doubtful, the presumption of law is that it is subordinate and not adverse to legal owner. Spencer v. O'Neill, 100 Mo. 49, 12 S.W. 1054; Tiedman, supra. To change character of possession, real owner must be given actual notice of claim of title, or repudiation of title must be so notorious as to raise presumption of notice thereof. 2 C.J. 137. It is always a question for the jury whether a possession has all the elements to make it a case of disseisin. Tiedman, Real Prop. 693. A person may adopt what name he pleases without abandoning his real name; may adopt any name, style or signature wholly different from his own name by which he may transact business, so long as he has no fraudulent intention. Carlisle v. People's Bank, 122 Ala. 446, 26 So. 115; Ingram v. Watson, 211 Ala. 410, 100 So. 557; 45 C.J. 376. Where terms of written contract are collateral to issue, they may be proved by parol evidence, without producing the writing or accounting for its absence. Street v. Nelson, 67 Ala. 504; 22 C.J. 987, 1015; Stearnes v. Edmonds, 189 Ala. 487, 66 So. 714. As against a stranger, less than all the tenants in common may sue to recover the whole of the common estate; the recovery of those suing inuring to the benefit of all the cotenants. Hooper v. Bankhead, 171 Ala. 626, 54 So. 549; Dorlan v. Westervitch, 140 Ala. 283, 37 So. 382, 103 Am.St.Rep. 35.
This is an action of statutory ejectment by E. M. Butler against Jackson Lumber Company, a corporation, to recover possession of the southwest quarter of the northeast quarter of section 26, Township 2, north of Range 17 east, in Covington County, Alabama. The case was tried before a jury, and resulted in a verdict and judgment for the plaintiff for the lands sued for. The defendant, Jackson Lumber Company, appealed.
Appellee claims title to, and the right to possession of, the lands involved through the following conveyances and sources: patent from the United States to John W. Rigdon; deed from John W. Rigdon to Monroe Butler and Holland Ward. Butler died during the War between the States, leaving surviving his wife, Helen (or Ellen) Butler and two children, A. M. Butler and W. E. (Winnie) Butler. Helen (or Ellen) Butler died about 1892, leaving surviving A. M. Butler and W. E. (Winnie) Butler. A. M. Butler conveyed his interest in the estate of his father, Monroe Butler, to W. E. (Winnie) Butler on September 1, 1903. W. E. (Winnie) Butler died about 1914, leaving surviving her son, the plaintiff, as her sole heir at law and next of kin. There is no evidence touching the disposition of the interest of Holland Ward.
Defendant rested its claim of title on adverse possession of one J. M. Powell for the statutory period, and a deed from Powell to defendant.
After the death of Monroe Butler, his widow, Helen (or Ellen) Butler married J. M. Powell, and they lived on the lands involved, Helen (or Ellen) Butler Powell until her death about 1892, and J. M. Powell until his death in December, 1928. On November 15, 1902, in pursuance of section 1541 et seq., Code of 1896, J. M. Powell filed in the office of the judge of probate of Covington County, Alabama, notice of adverse possession and claim to the lands involved. On January 3, 1928, J. M. Powell conveyed the lands to the defendant, Jackson Lumber Company. This suit was commenced June 10, 1937.
Clearly, under the evidence, the question of whether or not the possession of Powell was of such character as to ripen into title was one for the jury and the defendant can take nothing by its assignment of error No. 8, based on the refusal of the general charge.
Written charges 1, 2, 3, 5 and 6, refused to the defendant, assume that plaintiff relied on title by adverse possession. Such is not the case, and the charges were therefore abstract and properly refused.
Written charge 4 finds no support in the evidence. The charge fails to take into consideration the alleged possession of Powell, without which defendant could not prevail. It was therefore properly refused.
There was no reversible error in refusing defendant's written charge No. 8. Although it is a correct statement of the law, the proposition asserted was amply covered by the oral charge of the court.
Defendant's requested written charge No. 10 is faulty in that it ignores the fact that W. E. (Winnie) Butler did not derive title solely by the deed from A. M. Butler, but also had an interest of her own by inheritance.
This suit was brought in the name of E. M. Butler. The plaintiff testified that his name was Ezra Manuel Butler. That he was generally called Manuel Butler: that he had signed his name M. E. Butler. There was other testimony to the effect that plaintiff was known as M. E. Butler.
There is a substantial variance in the evidence where a claim or defense for or against one party is alleged and the proof is of a claim or defense for or against another. Nevertheless, one who is as well known by one name as another may sue or be sued by either name. 47 Corpus Juris 174, section 323; 49 Corpus Juris 813, section 1197. There was no error in the rulings of the trial court made the basis of assignments of error 10, 11, 12, 29, 30 and 36.
It is settled in this State that, as against a stranger to the one, or more, less than all tenants in common may sue for and recover the whole of the realty, the subject of the tenancy in common, and the recovery inures to the benefit of all. Dorlan v. Westervitch, 140 Ala. 283, 37 So. 382, 103 Am.St.Rep. 35-41; Lecroix v. Malone, 157 Ala. 434, 47 So. 725; Blakeney v. Du Bose, 167 Ala. 627, 52 So. 746; Freeman on Cotenancy, section 343; note to Marshall v. Palmer, 50 Am.St.Rep. 838-843; note to Williams v. Coal Creek Min. Mfg. Co., 6 L.R.A., N.S., 710 et seq; Worrelle on Ejectment, section 123; Griswold v. Minneapolis, St. P. S. S. M. Railroad Co., 12 N.D. 435, 97 N.W. 538, 102 Am.St.Rep. 572; Hooper et al. v. Bankhead Bankhead, 171 Ala. 626, 54 So. 549.
Therefore the fact that plaintiff may own the lands sued for jointly with others, the heirs of Holland Ward, is no impediment in the way of his right of action; and defendant's written charge 15, asserting the contrary, was properly refused.
Charge 18 assumes that the possession of the lands by the defendant, and those under whom it claimed, was hostile to the title of the plaintiff, invades the province of the jury, and was properly refused.
Charge 19 was highly favorable to the plaintiff, appellee, and its refusal could not have prejudiced the rights of appellant.
Assignments of error 16, 17, 18, 22, 23, 31 and 32 are based on the admission in evidence of the records of the patent from the United States to John Rigdon, the deed from John Rigdon and wife to Monroe Butler and Holland Ward, the deed from A. M. Butler and wife to W. E. (Winnie) Butler. We have carefully examined the testimony touching the absence of the original instruments, and hold that they were sufficiently accounted for.
Assignments of error 19, 20, 29, 30, 34 and 45 are based on the admission of evidence touching the possession by parties, other than defendant and those through whom it claimed of the lands sued for. The evidence was admissible on the question as to the character of the possession of those through whom defendant claimed.
Objection was sustained to the following question propounded to plaintiff's witness Grover C. Barnes on cross-examination: "I will ask you if you received notice from W. P. Matthews to vacate the land?" The information sought had been previously given, and any error intervening was without injury.
Although the court sustained plaintiff's objection to the question propounded to witness H. G. Huggins, the witness answered, and the answer was not excluded. There is no merit in appellant's assignment of error 24.
The question propounded by defendant to witness H. G. Huggins, to which objection was sustained, and which is made the basis of assignment of error 25, calls for a conclusion of the witness, and invades the province of the jury.
Assignments of error 26 and 27 are based on the court's refusal to allow defendant to prove by witness Matthews that witness had given Grover C. Barnes notice "to get off the place." The time when the notice was given is not stated. For aught appearing, the proof was not material.
Assignments of error 28 and 33 do not state concisely in what the errors consist. They should do so and errors assigned in this way will not be considered by this court. Hall v. Pearce, 209 Ala. 397, 96 So. 608; Supreme Court Rule 1.
We have carefully examined assignments of error 38, 39, 40, 41 and 42, based on exceptions to certain designated portions of the oral charge of the court, and are clear to the conclusion that no error to reverse here intervened. Supreme Court Rule 45.
There was no error in the court's refusal to grant appellant's motion for a new trial.
The case is due to be and is affirmed.
GARDNER, C. J., and BOULDIN and FOSTER, JJ., concur.