The suit was in the nature of ejectment. The defendant pleaded the general issue.
The assignment of errors challenges the action of the trial court, taken on defendant's motion, excluding all of plaintiffs' evidence. It was this ruling of the court that made necessary the nonsuit, which was taken with a bill of exceptions. And thus there is presented the status, the basis of the decision in McCray v. Sharpe, 188 Ala. 375, 66 So. 441. See, also, Scales v. Central Iron Coal Co., 173 Ala. 639,55 So. 821; Mobile Light Railroad Co. v. Portiss,195 Ala. 320, 70 So. 136; Wise v. Curl, 177 Ala. 324, 58 So. 286; Western Union Tel. Co. v. Appleton, 190 Ala. 283,67 So. 412; L. N. R. R. Co. v. Bouchard, 190 Ala. 157,67 So. 265; Athey v. T. C. I. R. R. Co., 191 Ala. 646,68 So. 154.
In each of the cases of Athey and Wise, supra, it was pointed out that the affirmative charge which was requested and given cured any error committed in thus excluding the plaintiff's evidence. The bill of exceptions recites that:
"Plaintiffs showed by evidence that the title to the land in controversy had passed out of the United States of America to the state of Alabama and from the state of Alabama to H. D. Moore before the commencement of this suit. Here the plaintiffs rested. Defendant made a motion to exclude all of the evidence of the plaintiffs, the court granted the motion, and excluded the evidence offered by the plaintiffs; to *Page 305 this action of the court the plaintiffs then and there duly excepted. Because of this adverse ruling of the court in excluding all the evidence, the plaintiffs took a nonsuit with a bill of exceptions."
From the foregoing decisions it results that this cause must be reversed.
Unless the sufficiency of the plaintiff's evidence be tested by a demurrer to the evidence, or by the defendant's declining to introduce evidence and requesting the affirmative charge, the plaintiff has the right to have the defendant go forward with his evidence, and so afford plaintiff the opportunity, through cross-examination, to further attempt to prove his case.
It is inconsistent to say that testimony offered in support of a plea of contributory negligence may not be tested by the plaintiff's motion to exclude, and yet that the right is available to the defendant to thus test the sufficiency of the plaintiff's evidence. This can be done only by demurrer to the evidence or by the request for the affirmative charge. McCray v. Sharpe, supra.
The granting of such defendant's motion to exclude all of the plaintiff's evidence, in the first instance, was clearly demonstrated not to be error without injury, and to be unjust, by Mr. Justice Mayfield, in his concurring opinion in Scales v. Central Iron Coal Co., supra. The "inherent unfairness" of granting such a motion was shown by Mr. Justice McClellan, in McCray v. Sharpe, supra. These two cases were discussed in Mobile Light Railroad Co. v. Portiss, supra. It is unnecessary to prolong the discussion at this time.
An expression found in Mobile, Jackson Kansas City Railroad Co. v. Bromberg, Adm'r, 141 Ala. 258, 283, 37 So. 395, 401,402, to the effect that "where the evidence of the plaintiff fails to make a prima facie case, the motion to exclude would be proper, and this upon the idea of its immateriality," has misled trial judges into permitting the substitution of the motion to exclude all of the plaintiff's evidence, for the demurrer to the evidence or for the affirmative charge. This expression in Bromberg's Case, and the expressions in the Scales and Portiss Cases, to the same effect, are not in harmony with the decision in McCray v. Sharpe, supra; and to that extent these cases are hereby modified.
Proof by the plaintiffs that the general government granted to the state of Alabama the lands in question, and that the state in turn granted the same to one Moore, without proof connecting plaintiffs or their mortgagor with said Moore, and without showing when the grant to Moore was made, precludes plaintiffs' recovery. Warten v. Weatherford, 191 Ala. 31,67 So. 667; Ashford v. McKee, 183 Ala. 620, 62 So. 879; Chastang's Case, 141 Ala. 451, 37 So. 799, 109 Am. St. Rep. 45; Laster v. Blackwell, 128 Ala. 143, 30 So. 663; Stephenson v. Reeves, 92 Ala. 582, 8 So. 695; King v. Stevens, 18 Ala. 476, 477; Snow v. Tulley, 75 So. 164; 15 Cyc. 120, 121.
There was no evidence tending to show that either the plaintiffs, or Vest, the purchaser at the alleged foreclosure sale, or Lynn, the mortgagor, held possession of the lands in question until the defendant, Ransom, entered thereon. The fact that there was no ouster by the defendant was fatal to the plaintiffs' right of recovery under the present record. Rucker v. Jackson, 180 Ala. 109, 60 So. 139, Ann. Cas. 1915C, 1058; McCreary v. Jackson Lumber Co., 148 Ala. 247, 41 So. 822; Sabariego v. Maverick, 124 U.S. 297, 298, 8 Sup. Ct. 461,31 L.Ed. 444.
Although possession is prima facie evidence of title, and may be sufficient to support recovery in ejectment, yet, when it is shown that the true title is in another, the intendment in favor of the possession ceases.
Here, the record shows that the land passed from the United States to the state of Alabama, and from the state by grant or conveyance to H. D. Moore. In the face of this statement of the title, if the evidence showed Lynn's possession to have extended to the whole tract, the intendment in favor of such possession would cease. The law does not presume that the possessor does the wrong of disseising the true owner. It devolves upon one attempting to set up adverse possession to show the hostility of his possession to the title and right of possession of the true owner. Brown v. Cockerell, 33 Ala. 38,45; Walker v. Wyman, 157 Ala. 478, 484, 47 So. 1011. And evidence offered by the plaintiffs of acts of ownership on the part of persons under and from whom they asserted no title cannot, in the present state of the record, be of benefit to them. Laster v. Blackwell, supra.
Plaintiffs sought to establish title by showing that before the suit was brought in 1913 the lands in question were largely in woods, and had been in the possession of one Lynn for about nine years; that there were no improvements thereon, and only a small acreage was in cultivation. The cultivated tract was indefinitely described as extending north and south "about 350 yards," and "east and west on an average of about 150 yards." The time of this cultivation was likewise indefinite. There was a tendency of the evidence to the effect that in 1905 there was a clearing of about one-half an acre "lying back of a shanty on the south side"; that about from three to seven years before the trial the balance of the clearing that was done on the land was completed; by whom, it was not indicated. Defendant, as a witness, stated that he paid the taxes on the land one year, had been in possession of the land about 12 months, and made a crop thereon in 1914, after W. M. Lynn "had left the country."
Touching Lynn's possession, there was evidence *Page 306 tending to show that he erected two houses thereon, cultivated a portion, had wood removed therefrom, "claimed that he purchased it," and built a small pasture. The locations of this inclosure, of the houses, of the cultivated portions, and of the tracts whence the wood was cut, were not definitely shown. His daughter testified that while Lynn was on the land, he claimed to hold it by purchase. Smith v. Bachus, 195 Ala. 8,70 So. 261. There was other testimony to the effect that in Decatur he exhibited a deed describing the land, yet the witness could not tell its date, nor whose name was signed as grantor, if any was, did not remember whether it was acknowledged, nor whether it contained the words, "bargain, sell, and convey," but stated that it was a "warranty deed," and that witness took Lynn's mortgage on the land "about the 18th of April, 1913."
The effect of the decision in Owen v. Moxon, 167 Ala. 623,52 So. 527, touching declarations by one in the possession of land, as to the source of his title, was that such declarations, whether by one in possession or not, "are not admissible in evidence as against another" (Doe v. Clayton,81 Ala. 391, 2 So. 24; Daffron v. Crump, 69 Ala. 77), but that "a party in possession of land may make declarations explanatory of his possession," either claiming or disclaiming ownership of the property, and that such declarations may be given in evidence, in an issue of disputed ownership, no matter who may be parties to the suit. Possession being the principal fact, such declarations are admissible, as a part of the res gestae of the possession itself, and are so admissible when made by the "party while on the land, or in possession thereof, whether actually on the land or not at the time of making the same." Payne v. Crawford, 102 Ala. 398, 14 So. 854; Smith v. Bachus, supra.
Such declarations of Lynn, as to the source of his title, were competent only as tending to show that he claimed possession; not that he claimed as purchaser, under a proper conveyance from the former owner, or under color of title.
The trial court properly excluded the account of Stewart Bros. against Lynn because not proven as required by law. Code 1907, § 4003; Shirley v. Southern Railway Co., 73 So. 430.1 The future advances, to be made by them under the mortgage, were not definitely shown.
It has been uniformly held that section 2830 of the Code of 1907, and its predecessor, section 1541 of the Code of 1896, have no application to a rightful possession, nor to possession under color of title, nor to possession under a bona fide claim of inheritance or purchase. Mobile G. R. R. Co. v. Rutherford, 184 Ala. 204, 63 So. 1003; Dixon v. Hayes,171 Ala. 498, 502, 55 So. 164; Owen v. Moxon, supra.
The plaintiffs cannot place themselves without the statute by the uncertain evidence disclosed by the record as to the nature of Lynn's claim of possession. Without more, they must rest their right of recovery upon adverse possession under the statute, rather than upon any one of the several exceptions contained in section 2830 of the Code.
Plaintiffs having offered some material evidence, though not proof sufficient to establish their prima facie right to recovery, it follows, upon the authority of McCray v. Sharpe, supra, that the court committed reversible error in granting defendant's motion and excluding plaintiffs' evidence, instead of requiring the sufficiency of the evidence to be tested as pointed out in the foregoing authorities.
For guidance on another trial of this cause, see the recent constructions of section 2830 of the Code of 1907 in Perolio v. Woodward Iron Co., 73 So. 197,2 and Snow v. Tulley.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
McCLELLAN, MAYFIELD, SAYRE, SOMERVILLE, and GARDNER, JJ., concur. ANDERSON, C. J., dissents.
1 198 Ala. 102.
2 197 Ala. 560.