Humes v. Bernstein

72 Ala. 546

Opinion

STONE, J.

In speaking of the form, configuration, and dimensions of real estate, when in controversy, a witness who is a surveyor, or expert, may introduce a map, or diagram, to aid him in making himself understood; and when this is done, the map or diagram may be submitted to the jury, as an aid to that body in understanding or remembering the witness’ testi mony.—Bridges v. McClendon, 56 Ala. 327, and authorities cited. But such map, unless prepared according to section 868 of the Code of 1876, is only testimony to be weighed by the jury. It does not rise to the dignity of prima facie proof. Steele, who prepared the map, testified that he made it without having any title-papers before him, and, hence, Avithont having the means of knowing whether or not it was correct. lie further testified, on an examination of the two chains of title, that the map was not correct; and he gave the reasons why it was not correct. It, therefore, could not aid the jury in understanding and remembering his testimony, and it should not have been allowed to go to the jury. Its tendency was to confuse, rather than to enlighten that body.

This cause has been twice before in this court.—Bernstein v. Humes, 60 Ala. 582; same v. same, 71 Ala. 260. The testimony in the several trials has not been the same. The plaintiffs’ title has been heretofore made to rest primarily on the deed of Aciden, sheriff, to Elliott, made in 1832. It is substantially undisputed, that, from 1826 to that time, Jemison was the owner of the property in dispute. Acklen’s deed to Elliott describes the property conveyed as “part of lot number seventeen, fronting Gallatin street fifty feet, extending eastwardly seventy-three feet, sold as the property of said Isaac Jemison & Co.” This property, with description corresponding substantially with that given in Acklen’s deed, is conveyed in several mesne conveyances from Elliott down, until it became incorporated into the Bell Tavern property. We do not propose to repeat here what we said there, showing the various mesne convej'auces. We refer to the report of second hearing of this case (71 Ala. 260), for a full statement. The contention of. appellee is, that this deed is void for uncertainty in the description of the property intended to be conveyed. Without extrinsic aid, the dimensions of lot seventeen being given, it certainly is too indefinite. But, in construing written instruments, it is permissible to prove, not the unwritten intention of the parties, but the attendant facts and circumstances — the condition of the property, and of the parties at the time — as aids in the interpretation. Tn other words, you may put yourselves in the place of the contracting parties, and draw from that stand-point any legitimate inferences or conclusions (not conjectures) of fact, which tend to shed light on the intention of the parties.—Chambers v. Ringstaff, 69 Ala. 140; Tennessee & Coosa R. R. Co. v. East Alabama Railway Co., at present term. Replying to the argument that the deed is void for uncertainty, we said, when this case was last here: “ This can hardly be affirmed as matter of law, on the face of the deeds. We can not judicially know the extent of that lot’s front on Gallatin street. Its entire front on that street, looking alone to the deed, may have been only fifty feet; or, it may be that Jemison at that time owned a defined part of the lot fronting on Gallatin street, measuring fifty feet, and known as the property of said Isaac Jemison.” So, we in effect ruled, that the deed was not necessarily void for uncertainty; but that, if certain supposed proof was made, and certain facts shown, the property might be identified, and the deed would thus become operative. One phase of the testimony, in the present record, tends to show that before Sheriff Aciden conveyed to Elliott, Jemison had disposed of his entire front of lot seventeen on Gal-latin street, except the part in controversy, which it is contended lies south of the seven-feet alley.

In our last consideration of this case, we showed that the deed from Battle to Chappell, and from the latter to Bernstein, apparently called for only about ninety-two feet front on Gal-latin street, and bounded the premises south on the Bell Tavern property. It followed, as we then said, if the property in controversy lay south of that line, Bernstein, by virtue of his deed from Chappell, did not appear to have either title or color of title to it. Benstein’s title accrued in 1861, and we suppose he .had no possession before that time. In fact, it is not shown that he took any possession of the property in dispute until he let the premises to Gurley in 1865. The present suit was commenced in 1811, much less than ten years from the time he piit Gurley in possession; and, deducting the period of the war, much less than ten years from the time he purchased from Chappell. Now, if this be the situs of the disputed lot, whether Mrs. Hill, or any precedent owner to Bernstein, occupied the premises or not, neither Chappell nor Bernstein purchased such possessory right or claim; for the deeds do not embrace it. Nor is there proof, even if Mrs. Hill occupied the premises as a cow-lot, that that occupation or possession was kept up continuously, until Bernstein took possession through Gurley. Bernstein shows no right, by .the testimony in this record, to tack his possession to that of Mrs. Hill, beyond the land covered by his deed. It follows that, when this suit was brought, in 1871, Bernstein had no possession which could operate a"statutory bar, against any one’s lawful right of entry, of any lands which lay outside of the boundaries given in his deed.

The remaining question arises on the asserted adverse holding by Bernstein, when Walker conveyed to the children of Mrs. Chapman. When this case was first in this court — 60 Ala. 582 — speaking of the infirmity of a title acquired by purchase while the property was adversely held by another, we said, as the result of our rulings, that to defeat the operation of a conveyance thus made, it was sufficient that another “ is in possession, asserts the right to retain the possession, and that his claim is adverse to that of plaintiff’s grantor.” And when the case was last here — 71 Ala. 260 — we said: “ To avoid a deed made by one out of possession, it is enough if there be one in adverse possession, exercising acts of ownership, and claiming to be rightfully in possession. Color of title is not necessary.” The effect of these rulings was, and is, that it is not enough to avoid a conveyance of property that it is in the possession of another, who is exercising acts of ownership over it. Acts of ownership, such as clearing land, erecting houses, &c., are not necessarily claim of ownership, or of right. These may be done by a tenant, as they appear to have been done by ■Gurley, without any claim of right. Or, they may be the acts of a mere trespasser or adventurer, without claim of right. Or, they may be the result of a mistaken belief that the true line embraces the land on which the improvement is made, but with no intention of claiming if not within the area covered by the title. In either case supposed, unless the possession is held with the intention of claiming the property, without regard to the title, or true dividing line, such possession or holding is not adverse, and will neither ripen into a title by lapse of time, nor defeat the operation of a conveyance by the rightful owner. Brown v. Cockrell, 33 Ala. 38; Alexander v. Wheeler, 69 Ala. 332. It follows, that while acts, such as are usually done or performed only by the owner, or one asserting ownership, are legal evidence to go before the jury on the question of adverse holding, or of asserted claim of right, they are still only evidence to be weighed with the other evidence. They are not the equivalent of a claim of right. The latter is a conclusion of fact, to be found, or not found, by the jury ; the former is only testimony tending to prove such fact. But such acts need not be done by the party himself. Tie may have them done by an agent or tenant; and if done for him, they have the same effect in law, as if done by him.

In the charges given and excepted to are the following errors : Charge 1 is faulty in this, that the rule against maintenance does not apply, when the sale is what is called a judicial sale, or is made by a public officer, under legal process. Charges 2 and 3 omit all mention of claim of right, as a necessary ingredient in the adverse holding which would avoid Walker’s conveyance to the plaintiffs. Under the evidence, that qualifying clause should have been inserted in these charges.

If the defendant placed, or had placed, the improvements on the premises, in the bona fide belief that the property was his, then his claim for improvements should be entertained under sections 2951 et seq., Code of 1876.—N. O. & S. R. R. Co. v. Jones, 68 Ala. 48. Charge 4 is faulty, in that it preter-mits the question of bona fieles. The case cited will furnish a sufficient guide on another trial.

It is not deemed necessary to comment on section 2966 of the Code. If the land in controversy is not embraced in the terms of Bernstein’s title, then he had no color of title, and the statute does not apply to him. If it is embraced in his deed, then it would seem he was in adverse possession under claim of right, and plaintiffs must fail on that ground, if for no other reason.

We have several times spoken of plaintiffs’ claim contingently. We do not thereby intend to say, that the construction of the deed is a question for the jury. They must judge of, and determine the concomitant facts, which are aids in interpreting the instrument; but the court must construe the instrument. This is done by a hypothetical charge, stating the result, if certain facts are found to be proved. The jury passes-on the parol testimony, and determines what facts are proved. The court must determine what influence such facts, if found to exist, must exert, in interpreting the writing. The court thus interprets the writing, aided by the surrounding facts which the jury And to be proven. We, in Chambers v. Iling-staff, supra, laid down the true rule. We" have spoken of it contingently, for another reason. It seems to be undisputed that .Bernstein’s deed — -the quit-claim clause of it — conveys the lot on which the little brick house once stood. Some of the testimony in the record tends to show that the lot in controversy in this suit is the lot on which that house stood. Other witnesses testify differently. It is not for -us to determine the weight of the evidence. The jury must decide that, under proper instructions.

The last charge given, numbered five, is also erroneous. If, under the rules declared above, the plaintiffs are entitled to recover, they are entitled to rents, at least to the extent Bernstein has realized them; and if, under the testimony, the jury find that Bernstein had the improvements made, in the mistaken, though honest belief, that the land was covered by his deed — • but with no intention of claiming the lot if not embraced in his deed — then he will be entitled to the value of his improvements, but must answer for rents during the time they were being put up. The law does not contemplate that a mere trespasser, though innocently, on another’s land, shall make any profit thereby.

The last paragraph above relates alone to the question of rents, in the event plaintiffs are entitled to recover under the rules above laid down. The onus rests on them, first, to show such right, as we have intimated above it may be shown. This,. if done, will shift the onus to the defendant, to make good one line of his defense; either that his deed embraces the disputed ground — in other words, that the little brick house stood on the lot sued for; or, that when Walker conveyed to the Chapman heirs, he, Bernstein, was in adverse possession under claim of right as we have explained that phrase.

Reversed and remanded.

Briokull, O. J., not sitting.