In their brief on rehearing attorneys for appellee contend that the last clause of section 2830 of the Code, viz., "Nor [shall this section be construed as applying] to cases involving a question as to boundaries between coterminous owners," was intended to mean that the preceding provisions of the section, viz., "adverse possession cannot confer or defeat title to land unless the party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded," etc., and several other alternatives therein mentioned — that the concluding clause, quoted above, was intended to apply where a "case" or "lawsuit" is being tried under section 3843 of the Code. In section 3843 of the Code it is provided that —
"The defendant may, * * * in an action in the nature of ejectment, disclaim possession of the premises sued for, in whole or in part. * * * The defendant in his disclaimer may suggest to the court that the suit arises over a disputed boundary line, and thereupon the court shall make up and * * * submit to the jury the question of the true location of the line," etc.
It is plain on this language of the Code that the defendant only may make the suggestion, and it would seem to be equally clear that, unless the defendant does elect to make the suggestion, the cause must be tried as causes in ejectment in general are tried, that is, upon the question of title. Also, it is held by this court that, when such disclaimer and suggestion are made, the issue between the parties is not one of title. Section 2830 prescribes how and on what conditions title may be acquired by adverse possession. It takes ten years in any circumstances to perfect a title by adverse possession, and the possession during the entire *Page 697 time must be evidenced as prescribed except in the conditions prescribed. Appellee's contention then comes to this: Section 2830 prescribes the conditions in which title may be acquired by adverse possession, but whether title has been so acquired depends upon the defendant's election when an action to recover title comes on to be tried. Of course, the Legislature had no such intention, nor does the language used give the slightest intimation of such intention. Appellee's contention, to state its effect in different language, is that by the concluding clause of section 2830 of the Code evidence of adverse possession is to be excluded in cases in which a suggestion is made as provided in section 3843 of the Code, which suggestion comes to this, that the clause was intended to exclude evidence of title in cases in which title cannot be litigated. Of course, the Legislature did not so intend.
Counsel for appellee inquires what the court expects to do with the decisions in Jeffrys v. Jeffrys, 183 Ala. 617,62 So. 797, and Livingston v. Nelson, 200 Ala. 507, 76 So. 449. What we do with them is this: In the last-named case the result at least was correct, for, in that case a suggestion, disclaiming possession and, according to previous decisions, excluding proof of title, was made as provided by section 3843. As to Jeffrys v. Jeffrys, all we can do is to say that if, the facts considered, it holds differently from the opinion here expressed, it will no longer be followed.
Application overruled.
All the Justices concur, except ANDERSON, C. J., and McCLELLAN, J., who dissent.
ANDERSON, C. J., and McCLELLAN, J. (dissenting on the merits) entertain the opinion that the application for rehearing should be granted and an order of affirmance should be entered.
The action is statutory ejectment, to recover 11.62 acres of land, and was instituted by the appellant against appellee. At the conclusion of plaintiff's (appellant's) evidence, the court practically directed a verdict for the defendant — an action entirely justified by the failure of the plaintiff (appellant) to discharge his burden to show, at least prima facie, a right to recover. In ejectment, a plaintiff must recover on the strength of his own right, as distinguished from the weakness of his adversary's. Carpenter v. Joiner, 151 Ala. 454,44 So. 424, among many others recognizing this commonplace principle.
The plaintiff (appellant) offered a deed from J. H. J. and Susan A. Williams purporting to convey several different acreages to their respective children and a grandchild. One of these was a son, J. Arthur Williams, back to whom plaintiff undertook to trace his title. On defendant's objection, the feature of the deed purporting to convey a separate tract or parcel to Mrs. Hembee was excluded, the plaintiff (appellant) stating, in response to inquiries, that he did not claim through Mrs. Hembee, but through J. Arthur Williams. To this ruling plaintiff (appellant) took no exception, and does not on this appeal question this ruling of the court. Hence it must be accepted, for the purposes of this review, that the Hembee feature of the deed, from J. H. J. and Susan A. Williams, was not in evidence. The pronouncement in the majority opinion that these parties were shown to trace or did trace "their paper titles back to a common source, viz., J. H. J. Williams," is not justified by this record. The defendant offered no evidence. There was no admission for defendant that he traced his paper title back to J. H. J. Williams as the common source of title. There was no evidence of the source or claim of source of defendant's title. To invoke, in a plaintiff's behalf, the rule of law consequent upon claim of title by both parties from a common source, either there must be an admission of that fact or the plaintiff must establish it by proof. Butt v. Mastin, 143 Ala. 321, 324, 39 So. 217; 7 A.L.R. pp. 860, 883 et seq. Instead of there being an admission by defendant that he claimed title from the common source stated, the record recites (page 29):
"Counsel for plaintiff then said at the commencement of the case he stated both sides claimed title from the same source. Counsel for defendant claimed he had more [made] no agreement that such was the fact, but had objected to plaintiff's alleged title."
The trial court's definition of the only issue in the cause under the evidence concluded to like effect, viz., that there was neither admission nor evidence showing defendant's claim of title from J. H. J. Williams or Susan A. Williams. The court correctly thus defined the issue: "* * * The issue now in this case is whether this land is in the lower half" of the tract mentioned in the conveyance to J. Arthur Williams.
In excluding plaintiff's proffered evidence of adverse possession, the court had and applied the sound authority of Jeffrys v. Jeffrys, 183 Ala. 617, 62 So. 797, construing Code, § 2830. Its doctrine was approvingly declared in Livingston v. Nelson, 200 Ala. 507, 508, 76 So. 449, citing it as authority. That this court did not intend to overrule Jeffrys v. Jeffrys, supra, as a settled construction of Code, § 2830, through the deliverance in Smith v. Bachus, 201 Ala. 534,78 So. 888, is obvious; no reference to it being made in the opinion in Smith v. Bachus. The like observations may be made with respect to Hopkins v. Duggar, 204 Ala. 626, 87 So. 103. *Page 698