The Montgomery advertiser., 1906-11-11
WILSON v. TAYLOR.

<&S&tuii VA GVukffk09 &O4NES s~-~k g(sCA0G& June 30. t9es. fl So. Rep, s24.) 1. Trial; affirmative charge .~-Issu' being joined on second plea, and thu evidence under the plea being tn con ffict there being evidence tending |, support the plea, it was error for tn, Icourt, ex moro motu, to charge that tn, plaintiff was entitled to recover. l 2. Assumpsit: issue and proof .-Th, plaintiff was not conffned to proof o contract to pay R particular price fol the use of the oxen, where the sui was on the common counts.
 Appeal from Houston Circuit Court
 Heard before Hon. Terry Richardson Special Judge.
 Reversed and remanded. opinion bs l weakley. C. J., Haraison and Den, son, U. concur.
 SOUTHERN RY. co. vs. CITY OF AT.
 sTALLA.
 Trover.-(Decided June 14th, 1906 fl
 So. Rep. 664.)
 l. Trover; right of action: right of possession.--In order to recover in an action of trover the right to proper ty, general or special. and possession. or immediate right of possession must be in the plaintiff at the time of the iconversion.
 2. Same; complaint: allegations; lsuf1ciency.--In an action for the con- version of water, an allegation that Iplaintiff put the water into a tank belonging to another railroad, pur- suant to a contract with such road binding plaintiff to furnish water to such railroad for it's exclusive use, and that defendant took the water and converted 1t to it's own use. suf- lficiently shows ownership lp plaintiff and plaintiffs possession at the tima of the conversion.
 8. Election of remedies; grounds. = The party must have two actual in- consistent remedies to make a case for dies.
 4. Money received; conversion: waiver of tort.-UntiI there has been a sale of the property converted by | the tort feasor, the owner of the property cannot waive the tort and sue for money had and received.
 5. Trover;, pleas; defects; election to waive tort;A sufaciency.--As an an . swer to a complaint in trover. a plea which alleges that the same plaintiff had previously instituted suit in as- sumpsit against this defendant in which. 1t treated defendant as q pur~ chaser of the property alleged to have been converted. but which fails 70 fallege a sale of the property by de- fendant, before the institution of the assumpsit action, is fatally defective. as one may not recover for money had and received, based upon a eonver- sion, unless there has been sale of the property by the wrongdoer. l G. Same; action; pleading; evl- dence.-It was permissible to intro duce the summons and complaint in lassumpsit in support of the plea of the institution of the suit In assump lcfk knf Aka HAsw .a e1 of trover. as issue was joined on such plea.
 z. Same; right of action Under a lcontract made by the city to furnish water to another railroad ror-its ex. elusive use, pursuant to which 1t fur nished the water, which defendant took and converted to it's own use, paying the other railroad therefor, the city had the right to maint1in an ac- tion of trover against defendant for the water so converted.
 8. Appeal; ruling on demurrers; presumptions-This court Oh appeal will presume demurrers to have been abandoned where the record fails to show a ruling of the trial court on de- murrer to pleas.
 Appeal from Gadsden City Court.
 Heard before Hon. John H. Disque
 Reversed and remanded. Opinion by Anderson. J.
 weavley, c. J, Tyson nd Simpson JJ., concur
 McCREARY EFT AL V. JACKSON Ejectment.-(Decided June 5, 1906" 4.
 So. Rep. 822)
 1. Ejectment; possession; jury question.-Where a witness enumerat ed certain possess0ry acts of tn, , grantor of plaintiffs ancestor, not il ] possession, but not shown to be tn only possessory acts performed, an, testified further that at the time plain tiff's ancestors grantor conveyed tn l land he was in possession of it, wheth CT or not he was in possession was question to be submitted to the jury. ] 2. Same; older possession-In eject ment, if neither party has the lega , title. the older possession gives tn better right, and it is not defeated b, subsequent entry and occupation b, the other claimant until it ripens int title by adverse possession. T 8. Same; possession; color of title continuous possession.-One cIaiminI by prior possession under color of titI cannot recover in ejectment unless h shows continuous possession to tn . time of dispossession by the riva claimant, or an intention to return af ter quitting.
 4. Same adverse claim; notice.- The defendants grantor abandone the land from 1865 to 1S9O,A and he deed to the land was not recorded unti I 1890, and there was nothing to pu plaintiffs grantor on notice that de 7 fendant's prior grantor Had an advers z claim of possession in 1874, or whel . the land was sold to plaintiffs ances tor in 1882. Held, that if plaintiff ae ! quired a prior possession through sucl . grantor, he would be entitled to recov CT against a mere trespasser, or on 1 claiming under a later possession, pro . vided defendant had not acquire, e peaceable possession in good faith un der color of title.
 5. Same; outstanding title-Th defendant proved color of title and bona fide purchase from those in pos session of the land. Held. this woult enable hlm to defeat plaintiffs righ of recovery by showing an outstand ing title in another, without connect ing himself with it; but in the cas- at bar defendant was relieved of thi , burden by the plaintiff, who shove, , the title to be in the patentee. witt whose title plaintiff showed no con , nection.
 6. Adverse possession; elements proof.-Before adverse possession cal ripen into a title upon which recover may be had in ejectment it must b shown to have been actual, exclusive open. notorious. hostile and continu ous for a period of ten years in tn