Livingston v. Nelson

SOMERVILLE, J.

[1]

The record of the proceedings and judgment in the case of Livingston v. Story, an ejectment suit tried upon the suggestion of disputed boundary, though it may have involved the location of a continuation of the same line here in issue, was not admissible in evidence in this case, either as a res judicata, or otherwise. It was an independent case, and privity between Story and this defendant does not appear. .The record was properly excluded ou principles that are elementary and conclusive.

So, also, the questions to plaintiff’s witness, involving reference to, and comparisons with, the line, established by the verdict in the Story Case, were obviously improper, and defendant’s objections were properly sustained.

[2]

The issue being upon the location of the boundary line between the parties, their respective deeds to the adjoining tracts were properly admitted in evidence.

m These deeds show that, so far as color of title is concerned, the boundary line to be located was a subsidiary line of the government survey, viz. the line between the S. W. % of the N. W.

% of the section, plaintiff’s land; and the N. W. % of the S. W. 14, defendant’s land. The evidence shows that the adverse possession of the disputed strip by defendant, and his prior privies in title, did not begin before 1884 or 1885, and could not have ripened into a hostile title before the passage of the act of February 11, 1893 (Code 1S96, § 1546), and, since they had no color of title, nor bona fide claim of purchase, and filed no declaration of adverse claim (as provided by that act), and it does not appear that they have annually listed the land for taxation for 10 years prior to the commencement of this action, as provided by the amended statute (Code 1907, §. 2830), they could not acquire title to this strip by adverse possession since 1893, however continuous' or protracted. Jeffreys v. Jeffreys, 183 Ala. 617 , 62 South. 797 ; Wade v. Gilmer, 186 Ala. 524 , 64 South. 611 ; Oliver v. Oliver, 187 Ala. 340 , 65 South. 373 .

[4]

The only issue, therefore, was, upon .the true location of the government survey, between these two adjoining 40-acre tracts. It necessarily follows that the trial court erred in submitting to the jury the question of a boundary line to be determined by defendant’s adverse possession of a portion of plaintiff’s 40, if they should find that the disputed strip was in fact a part of the S. W. % of the N. W. %. Howard v. Brannan, 188 Ala. 532 , 66 South. 433 .

The- verdict of the jury locates the boundary line as “commencing at the west boundary line of section 5, in which part is now marked by “a post oak stump lying on the ground.” Conceding, without deciding, that a stump lying loose on the ground is an adequate monument for the establishment of a boundary line by verdict, yet we find no evidence in the record that there was such a stump. We wish merely to call attention to the rule that a verdict must be responsive to the issue, must he supported by the evidence, and, in cases like this, must furnish plain data for any action required of the sheriff. Wade v. Gilmer, supra; Oliver v. Oliver, supra.

For the error noted, the judgment will be reversed, and tbe cause remanded.

Reversed and remanded.

ANDERSON, C. J., and MAYFIELD and THOMAS, JJ„ concur.