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172 Ala. 79

Smith v. Steiner

Supreme Court of Alabama

Decided May 18, 1911

Supreme Court of Alabama · decided 1911-05-18

<p>1. Ejectment; Color of Title; Possession. — Color of title to an entire 40 acre tract of land with actual possession of the north half, was insufficient to entitle plaintiff’s recovery of the south half in ejectment, where such possession was not acquired until after defendant had acquired actual possession of such south half.</p> <p>2. Same; Surrender; Evidence. — Proof that the defendant surrendered possession of the land in controversy to one S., without proof that such surrender was for the benefit of the plaintiffs or their grantors, was not sufficient to establish plaintiff’s possession; especially, where it also appeared that the defendant continued in possession for many years thereafter.</p> <p>3. Same; Title; Possession; Evidence. — Proof that a certain person prior to 1899, came into the neighborhood to look after the land in controversy for plaintiff’s grantor, who held color of title, did not of itself show actual possession by plaintiff.</p> <p>4. Same; Recitals in Deed. — A recital in a deed from the grantor to plaintiffs of a mortgage from S. to plaintiff’s grantor was at best but prima facie evidence against the grantor and his privies, and was not evidence against one in possession of a pari; of land holding adversely.</p>

Relies on Naugher v. Sparks · Ayers v. Roper

Good law ✅— No negative treatment on recordhow we know

Reversed and remanded · Decided 1911-05-18

How this case has been cited

Cited by 6 later decisions — most recently December 1941

6 state decisions

201911192019301940decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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ANDERSON, J.

¶1This is an action of ejectment for the recovery of the S. y2 of S. W. % of the N. E. % of section 30, township 9, range 17. The plaintiffs never proved title to the land, nor actual possession .of any part of the forty of which the land involved is a part, in their grantors or themselves, prior to the actual possession of the defendant.

¶2They did show color of title to the entire forty, and attempted to show actual possession to the N. %, and which, if true, would, under their color of title, extend their possession to the S. y2, if not in thé actual possession of another. The plaintiffs did not show actual possession of the N. y2, in themselves or their vendors, prior to- the defendant’s actual possession of the S. y2.

¶3The witness Browder did testify that Powell came down there, prior to 1899, to look after the land for Flowers, but this, of itself, did not show actual possession of the N. y2 of the forty, and the witness, on cross-examination, showed that Powell, nor any one else, had been in the actual possession of any part of the forty, before the defendant went into the actual possession of the S. y2 of same.

¶4The plaintiffs also attempted to establish a possession by a surrender of possession by the defendant to Maj. Steiner, but which was denied by the defendant. It might be conceded, however, that this contention was true, yet the proof shows that the defendant continued in the possession many years thereafter, and it does not appear that the surrender to Maj. Steiner was for the benefit of plaintiffs or their grantors.

¶5*83The deed from Flowers to the plaintiffs does recite a mortgage from certain Steiners to Flowers, but the proof does not show that Maj. “Genie Steiner” was one of the parties to the said mortgage, and, if it did, these recitals would at most be prima facie evidence only as against Flowers and his privies, and could not he evidence against this defendant. — Ayers v. Roper, 111 Ala. 651, 20 South. 460; Naugher v. Sparks, 110 Ala. 572, 18 South. 45. The plaintiffs not having shown title to the land or possession, either in themselves or their grantors, did not make out a case for the jury, and the trial court erred in not giving the general charge requested by the defendant, and the judgment of the circuit court is reversed, and the cause is remanded.

¶6Reversed and remanded.

Mayfield, Sayre, and S'omervillb, JJ., concur.
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