This is a statutory action in the nature of an action in ejectment (Code 1940, Tit. 7, § 938; Tit. 7, § 223, Form 32) brought by appellant, Christine Hollis, in the circuit court of Pickens County against appellee, Don Alexander. The suit involves a strip of land containing approximately 8 acres along the west line of the west half of the northeast quarter of Section 7, Township 20, Range 15, in Pickens County, the said strip being west and south of a county road.
The defendant entered a plea of "not guilty", which, under § 941, Tit. 7, Code 1940, is a plea of the general issue. There was no suggestion that the suit arises over a disputed boundary line (Code 1940, Tit. 7, § 942). Trial was had before a jury. The factual issues related to the parties' record title to the strip and whether either had acquired title to the strip by adverse possession. The jury returned a verdict in favor of the defendant. It is from the judgment rendered on said verdict that the plaintiff brings this appeal.
The defendant, on being recalled as a witness in his own behalf, identified, over plaintiff's objection, a copy of his attorney's title opinion, which was then offered and received in evidence, also over plaintiff's objection. The opinion is addressed to the defendant, dated June 15, 1950, contains in the caption a description of the land, and recites, to the extent here important, the following:
Was such opinion evidence competent in this case? We entertain the view that it was not.
We find no instance where this court has treated this particular point authoritatively. However, in Blair v. Blair, 199 Ala. 480, 481-482, 74 So. 947, a statutory ejectment action, it was observed that "possession is a fact to which a witness may testify or upon which he may give an opinion or conclusion, though this is not true as to title to land." See, also, Whitfield v. McClendon, 251 Ala. 591, 594-595, 38 So.2d 856.
Bearing on the question is the following from 20 Am.Jur., Evidence, § 772, p. 644:
The case of Hodge v. Ellis, 268 S.W.2d 275, 289, (a Tex.Civ.App. case, with further opinion by the Texas Supreme Court reported in 154 Tex. 341, 277 S.W.2d 900, 901, not affecting our question) was an action to determine whether certain property was community property or the separate property of a deceased wife. In the course of its opinion the court there said:
See, also, Green v. Baker, 66 Mont. 568, 214 P. 88, 90.
It seems to us that receipt in evidence of the opinion on title, declaring, as it does, the attorney's conclusion and opinion as to who holds the record title, goes to the very heart of one of the material issues in the case, that is, which of the parties
It follows, from what we have said, that the judgment appealed from is due to be reversed and the cause remanded. It is so ordered.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, SIMPSON, MERRILL and COLEMAN, JJ., concur.