Opinion
7 Div. 206.
April 13, 1922.
Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.
Baker Baker and C. A. Wolfes, all of Ft. Payne, for appellant.
All the plaintiffs must be entitled to recover, or none can, and they must recover on the strength of their own title. 78 Ala. 206; 191 Ala. 34, 67 So. 1006; 201 Ala. 627, 79 So. 189; 193 Ala. 482, 69 So. 564. The proof was not sufficient to authorize introduction of secondary evidence of the destroyed deed. 18 C. J. 437; 108 Ala. 553, 18 So. 561; 196 Ala. 309, 71 So. 397; 22 C. J. 1032. The subscribing witnesses should have been called or accounted for. 16 Ala. 725; 70 Ala. 284.
Isbell Scott, of Ft. Payne, for appellees.
There was no error in the admissibility in evidence of the destroyed chain of title. 200 Ala. 4, 75 So. 316. The defendant did not establish his adverse possession, and in any event it was a jury question. 21 Ala. 151; 43 Ala. 633; 189 Ala. 325, 66 So. 491.
The action, under the statute, was in the nature of ejectment. Code, § 5382, p. 1200, form 29; Bush v. Glover, 47 Ala. 167, 171. The plaintiffs and defendant claimed title from a common source (Perolio v. Doe ex dem. Woodward Iron Co., 197 Ala. 560, 73 So. 197), to wit, their father, John Clark Crow. The plaintiffs are Susie Keith (the child of Crow by his second wife) and her children; the defendant is C. L. Crow, her half-brother and son of the father by his first wife. The judgment was for the plaintiffs.
In ejectment, where the action is possessory (Holland v. Pattilo, 205 Ala. 221, 87 So. 341), plaintiffs must recover on the strength of their own title, and not on the weakness of the adversary's (Monfee v. Hagan, 201 Ala. 627, 79 So. 189; Stewart Bros. v. Ransom, 204 Ala. 589, 591, 87 So. 89; Haley v. Miller, 193 Ala. 482, 69 So. 564; Gerald v. Hayes, 205 Ala. 105, 87 So. 351); and all plaintiffs must be entitled to recover, or none can recover (Langley v. Shanks, 200 Ala. 176, 75 So. 924; Salter v. Fox, 191 Ala. 34, 67 So. 1006; Knight v. Hunter, 155 Ala. 238, 46 So. 235; Dake v. Sewell, 145 Ala. 581, 39 So. 819; Oates v. Beckworth, 112 Ala. 356, 20 So. 399; Seelye v. Smith, 85 Ala. 25, 4 So. 664; Whitlow v. Echols, 78 Ala. 206). This rule has not been changed by section 3839 of the Code of 1907. The fact that the copy of the deed was in different ink did not render the same inadmissible, after the proper predicate was laid. This was a question for the consideration of the jury, in weighing the evidence as to the title of plaintiffs.
The deed from A. C. Crow to "Susie Keith and her children" conveyed the title to children living at the time the deed was made. Porter v. Henderson, 203 Ala. 312, 82 So. 668. The evidence showed without conflict that Mrs. Keith's youngest child was 15 years of age when the suit was brought on December 30, 1919 (judgment being rendered on February 9, 1921), and was in life when the deed was made on April 2, 1906. This conveyance reinvested, in Mrs. Keith and children then living, the title of A. C. Crow, who had theretofore been invested therewith by the deed of Mrs. Keith and husband about May, 1900; she having theretofore received a deed to the land from her father, John C. Crow, and his wife. The predicate was sufficient to warrant the secondary evidence of the respective conveyances. The evidence does not show that plaintiff, Mrs. Keith, was particeps criminis in the destruction of the deed in question. McCleery v. McCleery, 200 Ala. 4, 75 So. 316.
The evidence of defendant's possession of the land was not sufficient, or of that character, to warrant the giving of the affirmative charge for defendant. The character of possession of the land under a claim of title — whether adverse, notorious, and hostile to the title of the true owner — was a question for the jury. Gerald v. Hayes, supra. Continuous adverse possession is usually a question of fact — whether the acts of the defendant, which were testified to, constituted such a possessio pedis, and assertion of right, as amounted to adverse possession — and it is the province of the jury to find the facts under the charge of the court. Bedsole v. Davis, 189 Ala. 325, 329, 66 So. 491; Collins v. Johnson, 57 Ala. 304; Rivers v. Thompson, 43 Ala. 633; Benje v. Creagh's Admr., 21 Ala. 151; Herbert v. Hanrick, 16 Ala. 581, 595; Price v. Talley's Adm'r, 18 Ala. 21; Doe ex dem. Farmer's Heirs v. Eslava, 11 Ala. 1028, 1044; Jackson v. Smith, 9 Johns. (N.Y.) 101.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.