[Thomason v. Gray.] Thomason v. Gray. Motion to Quash Execution. 1. Affirmance of judgment; merger.—When a judgment is affirmed by this court on appeal, the judgment of the lower court is merged in the judgment of this court, so that it can not be altered by the lower court, nor can it be amended by this court, after the expiration of the term at which it was rendered. 2. Same; execution of judgment in favor of infant or next friend.-A judgment in favor of an infant, suing by his next friend, having been affirmed by this court on appeal without mentioning the next friend, an execution subsequently issued will not be quashed because it follows the affirmed judgment. APPEAL from Calhoun Circuit Court. E. H. HANNA, for appellant. KELLY & SMITH, contra, cited McArthur v. Dane, 61 Ala. 539; Werborn v. Pinney, 76 Ib. 291. SOMERVILLE, J.-The Circuit Court, in our opinion, did not err in refusing to quash the execution against the appellant. Thomason, which was issued in the name of the appellee, Rolan B. Gray. The contention of the petitioner was that Gray, being a minor, and having brought the suit by his next friend as required by statute (Code, 1886, $ 2579), and recovered judgment in the Circuit Court in this form, the execution should follow that judgment, although on appeal taken to the last term of the Supreme Court the judgment was here affirmed as one in favor of Gray, omitting all allusion to his next friend. A full answer to this suggestion is found in the settled. principle, many times decided, that where the judgment of a lower court is affirmed, on appeal taken to this court, it is merged in the judgment of the appellate court, so that it can not be altered by the lower court; nor by this court after expiration of the term at which it was rendered. Werborn v. Pinney, 76 Ala. 291; McArthur v. Dane, 61 Ala. 539; Wiswell v. Monroe, 4 Ala. 19; Stephens v. Norris, 15 Ala. 79. 84 560 93 111 84 560 123 138 84 560 143 455 143 456 [Woods v. Montevallo Coal & Transportation Co.] It may be that the judgment of this court is subject to amendment nunc pro tune so as to show the intervention of the plaintiff's next friend. But this omission can not affect the validity of the judgment, or the execution sought to be quashed, which follows the judgment as affirmed. The next friend of the minor is not the real and true party plaintiff to the cause. The purpose of his intervention is to guide the discretion of the minor, give him suitable advice, and protect his interests, by acting for him in many things connected with the suit which he is incompetent to do by reason of his disability as an infant, chief among which is his inability to employ or act by an attorney.--Cook v. Adams, 27 Ala. 294. Another purpose is to have before the court, on the record, some person sui juris who can be held responsible for the costs of the suit, as well as for the conduct of the cause. Cooper v. Maclin, 25 Ala. 298; Riddle v. Hanna, Ib. 484. It is obvious that the execution is not so irregular as to affect its validity, and its payment by the defendant to the sheriff would be a full defense to any subsequent attempt of the minor's prochein ami to enforce any supposed claim in his favor based on the same judgment, whether amended nunc pro tune, or otherwise. Affirmed. e143 458 143 459 84 560 144 530 Woods v. Montevallo Coal & Transportation Company. Statutory action of Ejectment. 1. Ancient writings.-A bond for titles, executed nearly thirty years before the commencement of the suit, coming from the custody of a person claiming an interest in the land, and unaccompanied by any circumstance casting suspicion on its genuineness, is admissible as evidence without any proof of its execution. 2. Possession of purchaser under bond for title.-The possession of a purchaser of land, holding only a bond for title, is presumptively adverse from the time of the payment of the purchase-money; and though the bond was executed by a person who had no title or authority to convey, and has never been recorded, it may constitute color of title. 3. Record of judgment as evidence.-The record of a judgment for or against a party is equally admissible as evidence against one who claims in privity with him, whether by blood, estate or law. 4. Ancient writings.-A receipt executed by an attorney of record for the plaintiff in a judgment, acknowledging payment and satisfaction thereof, over twenty years old is self-proving. [Woods v. Montevallo Coal & Transportation Co.] 5. Secondary evidence of lost deed.-To justify the admission of secondary evidence of a deed, it is not necessary to prove its loss beyond all possibility of mistake, but is sufficient to prove its probable loss; and this may be done by a bona fide and diligent search fruitlessly made in the places where it was likely to be found. 6. General reputation, or notoriety, as evidence.-The existence of a fact can not be proved by general reputation, or notoriety; but, when the existence of the fact has been shown, such evidence is admissible to charge a person in the neighborhood with knowledge of it. 7. Extent of possession, actual and constructive, under color of title. When a person enters upon a tract of land, under a deed or writing which constitutes color of title, his actual occupancy and improvement of a part will generally be construed as a possession of the entire tract, co-extensive with the boundaries described in the deed or writing, unless there is an antagonistic possession; but, if the deed or writing purports to convey two separate and distinct parcels or tracts, to one of which the vendor has no title, an entry upon and occupation of the other tract by the purchaser, will not, of itself, operate as a disseizin of the owner of the tract to which the vendor had no title, since the actual possession of the one is not inconsistent with the constructive possession of the other; yet, even in such case, the constructive possession of the purchaser or occupant may, by acts of dominion or ownership asserted over the other tract, become adverse and ripen into a title to it, in the absence of an actual possession by the true owner. 8. Adverse possession; what constitutes.-To constitute an adverse possession, the use made of the land must be suited to its nature, adaptability and locality, and the acts of dominion must be of such character as may be reasonably expected to inform the true owner of the fact of possession and adverse claim. 9. Same; question for jury.-The question of adverse possession, under all the facts in evidence, is for the decision of the jury; and a charge is erroneous which withdraws it from their determination. 10. Equitable title.-In ejectment, or the statutory action in the nature of ejectment, an equitable title is of no avail, apart from the operation of the statute of limitations. APPEAL from Shelby Circuit Court. Thomas Andrew Woods brought a statutory action of ejectment against the Montevallo Coal and Transportation Company for the recovery of lands specifically described in his complaint. Issue was joined on the plea of general issue and the special plea of the statute of limitations of ten years adverse possession. The plaintiff based his right of recovery upon his legal title arising from a grant of the lands sued for by the general government, and introduced in evidence the original patent from the Government to him, dated June 1, 1857. The defendant offered in evidence without proof of its execution, a bond for title from Thomas Woods (father of plaintiff) to the Alabama Coal Mining Company, from which company the defendant claims by subsequent and intervening deeds. This bond for title. was dated December 21, [Woods v. Montevallo Coal & Transportation Co.] 1855. To show that the purchase-money provided for in said bond for title, had been paid, the defendant introduced in evidence the record of the court proceedings in the case of Thomas Woods v. Alabama Coal Mining Co., which were had in 1859. The defendant also introduced in evidence "the original receiver's certificate of purchase, dated Tuscaloosa, Ala. December 20, 1854, to the plaintiff, Thomas Andrew Woods, for the lands in controversy." There was no written transfer of this certificate. Defendant introduced a receipt from Thomas Woods, purporting to be executed by said Wood's attorneys, to the Alabama Coal Mining Co., for a portion of the purchase-money as agreed upon in the bond for title above referred to. The plaintiff severally and separately objected to the admission in evidence of said bond for title, the record of the court proceedings, the receiver's certificate, and the receipt given by Thomas Wood's attorneys. The defendant introduced as a witness one Harris, and, among others, asked this question: "Was it not during such time generally understood and known in the vicinity where the lands in dispute are situated, that the Alabama Coal Mining Co. claimed them as their own?" The court overruled plaintiff's objection to this question, and plaintiff excepted. The plaintiff excepted to the giving of the following charge at request of defendant: "If the jury believe from the evidence that the Alabama Coal Mining Company obtained from Thomas Woods, in 1855, the contract given in evidence, and that from thence on they claimed the lands involved in this suit under said contract; and that in 1863 said company sold these lands and others, including those upon which is situated the Irish Pit' testified about, and conveyed the same to the Montevallo Coal Mining Company, and that that company conveyed all of said lands to the Central Mining and Manufacturing Company in 1867; and that each of said companies was in the actual possession and occupation of said lands upon which the 'Irish Pit' is situate, and during all of said time openly and notoriously claimed title to the lands in controversy under their said deeds; and that such claim of title, while said lands were so claimed and occupied, was generally known in the neighborhood, and if they further believe that plaintiff resided in said neighborhood while said companies claimed said title, and that for more than ten years before the commencement of this suit, defendant, and those from whom it derives title, vere in the actual occupancy, controlling the lands upon which the pit known as the 'Irish Pit' [Woods v. Montevallo Coal & Transportation Co.] is situate, claiming the same as theirs under said deeds, and not recognizing the title of plaintiff, then they must find for the defendant, although they believe the Montevallo Coal Mining Company had a title to said 'Irish Pit,' and have none to the lands sued for." C. G. WAGNER, JOHN T. HEFLIN, and W. S. CARY, for appellants. TROY, TOMPKINS & LONDON, and WILSON & LYMAN, contra. SOMERVILLE, J.-1. The bond for title, purporting to be executed by Thomas Woods on December 1st, 1855. or nearly thirty years prior to the commencement of this action, was properly admitted in evidence, in connection with the other proof showing the payment to him by the vendee of the purchase-money due for the land. It came from one claiming an interest in the land unaccompanied by any circumstance casting suspicion on its genuineness. It was admissible, therefore, without any proof of its execution, and without preliminary proof of possession under it, if otherwise relevant an inquiry which we next consider. White v. Hutchings, 40 Ala. 253; England v. Hatch, 80 Ala. 247; 1 Greenl. on Ev. § 144; Starkie on Ev. (Sharswood), *521-23. 2. Where a vendee of land pays the purchase-money due by him to the vendor, his possession under a bond for title at once commences presumptively to be adverse.-Beard v. Ryan, 78 Ala. 37; Morgan v. Casey, 73 Ala. 223; Drew v. Towle, (30 N. H. 531); s. c., 64 Amer. Dec. 309. Such a written instrument, therefore, although executed by one having no title or authority to convey, and unrecorded, would be good as color of title to show the character and extent of the possession asserted, and the intent with which such posses sion is taken.-Standifer v. Swann, 78 Ala. 88; Ladd v. Dubroca, 61 Ala. 25; Angell on Lim. § 404, notes 1 and 2; Lea v. Polk Co. Copper Co., 21 How. (U. S.) 493. 3. The record of the court proceedings in the case of Thomas Woods r. The Alabama Coal Mining Co. was competent to show a collection by process of law of the purchasemoney due on the land, the parties to that suit being respectively the vendor and vendee in the bond for title. The receipt, purporting to be executed by the attorneys of record for the plaintiff in that action, acknowledging the satisfac |