WALKER v. ROE

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Docket Number

SC 1281.

Attorney(S)

Phil Joiner, Birmingham, for appellant. Burden of proof adverse and exclusive possession is on the one asserting. Spradling v. May, 259 Ala. 10, 65 So.2d 494; Walthall v. Yohn, 252 Ala. 262, 40 So.2d 705. The trial court erred in the final decree, and in consideration of the evidence in the cause in ruling and holding in effect, that the mere possession of the purchaser (W. H. Barber), of the land subject of the suit, for a period of twenty years, gave him title thereto by prescription, irrespective of the character and legal limitations of his possession. Sec. 153, Title 7, Code of Ala. 1958; Swafford v. Brasher, 246 Ala. 636, 22 So.2d 24. Nash, NeSmith Walker, Oneonta, for appellees. Where evidence is heard orally before the trial court, the finding of the court has the effect of a jury's verdict, and if fairly supported by credible evidence under any reasonable aspect, it will not be disturbed on appeal, unless plainly erroneous. Chrisman v. Brooks, 291 Ala. 237, 279 So.2d 500; Jackson v. Rodda, 291 Ala. 569, 285 So.2d 77; Jones v. Boothe, 270 Ala. 420, 119 So.2d 203; Skinner v. Todd, 283 Ala. 279, 215 So.2d 721; Hayes v. Kennedy, 292 Ala. 362, 294 So.2d 739.

Judges

ALMON, Justice.

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Robert H. WALKER v. Wesley H. ROE et al.

ALMON, Justice.

Appellant Walker brought suit to sell certain land in Blount County for division.

After hearing evidence ore tenus the trial court denied the relief sought by appellant. The court found that appellee Barber purchased the land in December, 1952, and went into actual possession at that time. He further found that Barber and his tenants have remained in actual possession for a period in excess of twenty years. Morris v. Yancey, 267 Ala. 657, 104 So.2d 553.

When evidence is heard orally the finding of the trial court has the effect of a jury verdict and if fairly supported by credible evidence will not be disturbed on appeal, unless plainly erroneous. Ala. Digest, Appeal and Error, Key 1009.

There is ample evidence to support the judgment of the trial court.

The judgment is therefore affirmed.

Affirmed.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.

Robert H. WALKER v. Wesley H. ROE et al.

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