Watters v. Brown

ANDERSON, J.

This is an action of ejectment for a small parcel of land embraced in a tract of 300 acres purchased by Jordan De Yampert, Randall McCurdy, and Bob Tillman in the year 1891, and which was by parol divided betAveen said three purchasers during said year, or during the early part of the succeeding year. There Avas a conflict in the evidence as to whether or not the land in controversy was a part of the De Yampert *82 or McCurdy allotment, and whether or not the said De Yampert or' McCurdy had the adverse possession of same for over 10 years after said division. This question was squarely submitted to the jury, resulting in a finding for the plaintiff as to the whole interest in the land sued for, and being to the effect that De Yampert, and not McCurdy, had the title to same. It is true the plaintiff also had a deed from McCurdy; but, it being-executed subsequent to the mortgage to Loeb', her claim through the said McCurdy, as distinguished from hex-rights through De Yampert, was subject to the said Loeb mortgage, under which the defendant was claiming title.

It may be questionable as to whether or not the mortgage conveyed McCurdy’s one-third of the land; that is, the whole interest allotted to him, or merely an undivided third interest in what he owned. If the former, charge 3 was erroneously given for the plaintiff, and if the mortgage conveyed a mere undivided one-third interest of what McCurdy owned, then said charge was properly given. It may be conceded, however, that said charge was improperly given, yet the finding of the jury rendered the giving of same innocuous to the defendant, as the jury did not find for the plaintiff for the two-thirds interest in the land sued for, but for all of the land sued for; that is, the entire interest in said land. This the jury could not have found, except upon the théory that the plaintiff had established title through the adverse possession of De Yampert and herself, thus finding for her upon the issue of title by adverse possession; otherwise, they could not have found for the plaintiff as to all of the land sued for, and the verdict would have only been for a two-thirds interest, as hypothesized in said charge 3. Had the verdict been for only a two-thirds interest, then we *83 could not say that the giving of said charge, if error, was error without injury; but, the said verdict being for the entire estate in the land sued for, the jury could have only based such a verdict upon the theory that they found the issue" as to title by adverse possession in favor of the-plaintiff, and which rendered the giving of said charge, if error, without injury.

Moreover, charge 3 was the general affirmative charge as to a two-thirds interest in the land, and it is questionable whether or not the action of the trial court in giving or refusing same can be reviewed under the present bill of exceptions. It does not set out the evidence in extenso, but shows only the tendencies of the evi dence. —North Ala. R. R. Co. v. Brakefield, 123 Ala. 605 , 26 South. 646 .

The objection to the evidence as covered by the first two assignments of error cannot reverse the case. Whether said evidence was or was not material or relevant matters not, as it merely tended to prove a fact which was admitted by both parties and could work no injury to the appellant.

There was no error in refusing to exclude the evidence of Bandall McCurdy that the portion of the land allotted to Jordan De Yampert contained the houses, or in permitting the ivitnesses to state the quantum and value of the respective shares of the owners under the parol partition. The partition was admitted, and while such a parol partition may not have been sufficient to vest the.legal title eo instante in the different owners as to the parts allotted to them respectively, yet the issue was adverse possession as between De Yampert and McCurdy, and it was competent to show the agreed boundaries under which each entered and upon whose part was located the houses, as the strip in controversy contained a house occupied by McCurdy, but claimed *84 to be permissive, and tbe fact that it was on the land given to De Yampert is a corroborative circumstance that said McCurdy occupied the same with the permission of De Yampert.

Nor was there any error in permitting the plaintiff to show what De Yampert said to McCurdy would become of the house, as it was a conversation between the two parties shown to be claiming possesion of the land, and it was competent for the jury to consider in determining whether or not the possessory acts of McCurdy were hostile and adverse or merely permissive. There was evidence tending to show possession of McCurdy and that it was adverse, and it was therefore competent for defendant to show' that while he was in possession it was generally known as McCurdy’s land.— Owen v. Moxon, 167 Ala. 615 , 52 South. 527 .

The trial court, however, cannot be reversed for sustaining the objection to the question as to whether or not the land was known as McCurdy’s land. It was not confined to any particular period, and may have been known as his land at a time different from the period covered by De Yampert’s claim of possession. It is evident that the appellant meant to show that the land was known as McCurdy’s at the time when McCurdy was in possession; but the question, nor the statement succeeding same, does not fix the time as being when McCurdy was in possession, and it is incumbent upon the appellant to affirmatively show error before the trial court can be reversed.

The judgment of the circuit court is affirmed.

Affirmed.

All the Justices concur, except Mayfibibd, ’ J., not sitting.