Opinion
6 Div. 566.
April 11, 1940.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
Richard Hail Brown, of Birmingham, for appellant.
In ejectment, plaintiff must recover, if at all, on the strength of his own title and not on the weakness of his adversary's; and until plaintiff has made a prima facie case showing title, defendant is not required to offer evidence of his own title. Mobile Dry-Docks v. Mobile, 146 Ala. 198, 40 So. 205, 3 L.R.A., N.S., 822, 9 Ann.Cas. 1229; Louisville N. R. Co. v. Philyaw, 88 Ala. 264, 6 So. 837; McCreary v. Jackson Lumber Co., 168 Ala. 208, 53 So. 103; Jones v. Wild, 186 Ala. 540, 65 So. 349; Eureka Co. v. Normant, 104 Ala. 625, 16 So. 579; Montgomery v. Spears, 218 Ala. 160, 117 So. 753; McMillan v. Aikin, 189 Ala. 330, 66 So. 624. Color of title is a writing which purports in appearance to transmit title, but in reality does not. Bowles v. Lowery, 181 Ala. 603, 62 So. 107; Brannan v. Henry, 142 Ala. 698, 39 So. 92, 110 Am.St.Rep. 55; Southern Iron Steel Co. v. Stowers, 189 Ala. 314, 66 So. 677; Murphy v. Leatherwood, 221 Ala. 61, 127 So. 843. A deed cannot extend possession to lands not described in it. Brown v. Powers, 167 Ala. 518, 52 So. 647.
Wilkinson Wilkinson, of Birmingham, for appellee.
Conclusions or findings of fact by a trial judge will not be reviewed when it affirmatively appears that there was evidence before the court which is not set out in the record. Sherman v. Good, 21 Ala. App. 546, 109 So. 893; Montevallo Mining Co. v. Underwood, 202 Ala. 59, 79 So. 453; Alabama Terminal R. Co. v. Benns, 189 Ala. 590, 66 So. 589. It is discretionary with the trial court to reopen a case and in the absence of a record containing all the evidence this court cannot say the discretion was abused. Patterson v. Alabama F. I. Co., 194 Ala. 278, 69 So. 952; Chandler Bros. v. Higgins, 156 Ala. 511, 47 So. 284; Atlanta Life Ins. Co. v. Ash, 228 Ala. 184, 153 So. 261; Higdon v. Garrett, 163 Ala. 285, 50 So. 323. One in actual prior possession of property may recover in ejectment against a bare trespasser, on proof of actual prior possession alone, because proof of actual prior possession raises a presumption of title in the plaintiff. Such possession is sufficient proof of title against a bare trespasser. Louisville N. R. Co. v. Philyaw, 88 Ala. 264, 6 So. 837; Vidmer v. Lloyd, 193 Ala. 386, 69 So. 480, Ann.Cas. 1917A, 576. In ejectment plaintiff may recover upon prior possession as against defendant who has mere subsequent possession, and such defendant cannot defeat plaintiff's recovery by showing there is or may be an outstanding title in another. Owen v. Moxon, 167 Ala. 615, 52 So. 527. Adverse possession need not be founded on color of title; a claim of title is sufficient. Herbert v. Hanrick, 16 Ala. 581; Crowder v. Tennessee C. I. R. Co., 162 Ala. 151, 50 So. 230, 136 Am.St.Rep. 17.
Action of ejectment by appellee against appellant for "a strip of land three feet wide, parallel to and along the south side of and adjoining Lot 35 in Block 13 G, according to the plat of Walker Land Company of East Woodlawn, according to the plat of said Block 13 G as laid off into lots by Frazier Ebersole, etc." as set out in Amended Count A, being the one under which the case was tried. The plaintiff showed a record title to Lot 35 and her husband and agent, who purchased it for her, was evidently under the impression that said three foot strip was a part of said Lot 35. But the complaint does not proceed upon the theory that it is a part of Lot 35, and, unless it is, the plaintiff's deed would not convey the title or even operate as color of title to said strip.
The case was tried by the judge without a jury who rendered a judgment for the plaintiff. Therefore, eliminating the question of a complete title not shown by either party and considering, without deciding, that the plaintiff did not come within the statutory requirements of establishing a title by adverse possession, there was an abundance of evidence to show her actual possession of the strip in question for a number of years prior to the possession of the defendant who does not appear to have acquired possession except as a trespasser and, this being so, the trial court must be justified in rendering judgment for the plaintiff.
We, of course, recognize the general rule that ordinarily in an action of ejectment the plaintiff must recover upon the strength of his own title and not the weakness of that of the defendant, but there is another well recognized exception or rule that when neither party establishes title, the plaintiff may recover under an actual, previous possession as against a mere trespasser on the land or one claiming only under a later possession. McCreary et al. v. Jackson Lumber Co., 148 Ala. 247, 41 So. 822; Vidmer v. Lloyd, 193 Ala. 386, 69 So. 480, Ann.Cas.1917A, 576; Louisville N. R. R. Co. v. Philyaw, 88 Ala. 264, 6 So. 837; Owen v. Moxon, 167 Ala. 615, 52 So. 527.
Here, the plaintiff's evidence shows a possession of the strip when she purchased Lot 35 and a continuation thereof for several years and whether or no the proof was sufficient to show title by adverse possession, she made out a prima facie title which entitled her to recover as against one who, aught appearing, took possession and not as a purchaser or under color of title from one who held an older possession than the plaintiff.
The appellant made many objections and exceptions to the rulings on the evidence, but evidence received or rejected had no bearing upon the right to recover upon the theory heretofore outlined and could have been material only upon the question of title by adverse possession and a failure of the plaintiff to establish the same did not deprive her of the right to recover upon her older possession.
After both sides had rested and after counsel for plaintiff argued that defendant had failed to introduce any proof to show that he acquired possession except as a trespasser, counsel for defendant sought to reopen the case and permit them to offer certain deeds or evidence that the defendant did not take possession as a trespasser. The trial court within its discretion denied the motion and we are not disposed to reverse the cause for this reason. Patterson v. Alabama Fuel Iron Co., 194 Ala. 278, 69 So. 952, and cases there cited.
Moreover, it appears from the record that the trial judge had certain evidence upon the consideration of this cause which is not set out in the bill of exceptions.
The judgment of the circuit court is affirmed.
Affirmed.
THOMAS, BROWN, and KNIGHT, JJ., concur.