Opinion
8 Div. 326.
May 16, 1946.
Appeal from Circuit Court, Colbert County; Chas. P. Almon, Judge.
W. A. Barnett, of Florence, for appellant.
The general rule that a judgment by default is an admission of title in plaintiff does not apply in this case, because there was not a judgment by default for the property sued for. The judgment of the court is based on the verdict of the jury for the property. Possession of land is prima facie evidence of title and sufficient to support recovery against all who do not show proper possession or better title. Blair v. Blair, 199 Ala. 408, 74 So. 947. For the jury to return a verdict for the property sued for, there must have been sufficient evidence on which to base the verdict. Stephens v. Stark, 232 Ala. 485, 168 So. 873; Boyce v. Morrow, 226 Ala. 627, 138 So. 326; Ashurst v. Arnold, etc. Co., 201 Ala. 480, 78 So. 386; Jones v. Wild, 186 Ala. 540, 65 So. 349; Holder v. Bain, 185 Ala. 590, 64 So. 292. Verdict for plaintiff should specify whether it is for whole or part only of premises, and if for part must describe it. There was a house and lot and a vacant lot, and defendant was in possession of the vacant lot. Chapman v. Holding, 60 Ala. 522; Code 1940, Tit. 7, § 592. In ejectment plaintiff must show chain of title from grantor in possession or the government. Florence B. I. Ass'n v. Schall, 107 Ala. 531, 18 So. 108; 19 C.J. 1056; Hines v. Chancey, 47 Ala. 637; First Nat. Bank v. Johnson, 190 Ala. 566, 67 So. 234.
John D. Rather, Jr. and W. H. Shaw, both of Tuscumbia, for appellee.
The judgment by default was sufficient. The only question submitted to the jury was the amount of damages for detention. Judgment by default is an admission of title in plaintiff. There was no question of title to be submitted to the jury. Code 1940, Tit. 7, § 951. Appellant's insistence as to necessity for appellee to show chain of title is inapt, being foreclosed, by appellant's default. Contention that appellant was in possession only of the house and lot is not sustained by the evidence. The complaint describes the land, and the judgment entry follows that description.
The action was in the nature of ejectment and the plaintiff recovered a judgment for the property sued for, together with $300 damages for detention.
The defendant, who appeals, made no appearance and on trial of the case a judgment by default "for the land sued for and described in the complaint (describing it)" was duly entered. A writ of inquiry to determine and assess the damages for detention was ordered and on hearing the evidence the jury returned a verdict in favor of the plaintiff for the stated sum.
We cannot accord with counsel's contention that there was no judgment by default because the jury's verdict also included an award to the plaintiff of the property sued for. The fact that the verdict disregarded the instruction of the trial court to this extent and embodied this superfluous finding in addition to the award of damages for detention could in no way detract from the dignity and effect of such judgment. The judgment was in all respects one by default against the defendant, adjudging the plaintiff to be entitled to the property in litigation.
The argument is made that error intervened because there was no proof, against the defaulting defendant in possession, of the legal title of the plaintiff to the property.
Ordinarily, to establish, prima facie, a right of recovery the plaintiff must exhibit a regular chain of title from some grantor in possession or the United States Government. Ashurst v. Arnold-Henegar-Doyle Co., 201 Ala. 480, 78 So. 386; First Nat. Bank v. Johnson, 190 Ala. 566, 67 So. 234; Hines v. Chancey, 47 Ala. 637.
The judgment in the instant case being one by default, the principle is not controlling, as under the statute such a judgment is an admission of title in the plaintiff and proof thereof is unnecessary. Code 1940, Title 7, § 951.
The remaining argument deals with evidentiary matters, such as the alleged lack of proof to sustain a recovery of the entire tract of land, and the insufficiency of proof to support the recovery of damages.
The first contention is answered, of course, by the fact that the judgment by default was an admission of title in the plaintiff to the property described in the complaint, and this description was entirely sufficient under our authorities to support the judgment. Hughes v. Allen, 229 Ala. 467, 158 So. 307, and cases cited. And as to the latter, though it appears there was testimony to sustain the award of damages, the question is not presented for review since no ruling of any kind was invoked in the lower court to invite our consideration. General Construction Co. v. Ross, 226 Ala. 51, 145 So. 314; Yarbrough v. Armour Co., 31 Ala. App. 287, 15 So.2d 281.
The judgment appears in all respects valid and is affirmed.
Affirmed.
GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.