| Ala. | Jan 20, 1910
Lead Opinion
Common-law ejectment. The defense invoked was adverse possession- under color of title. All of the assignments of error relate to charges bearing on this defense.
Charge 3, given for defendant (appellee), has the sanction of Goodson v. Brothers, 111 Ala. 589" court="Ala." date_filed="1895-11-15" href="https://app.midpage.ai/document/goodson-v-brothers-6516791?utm_source=webapp" opinion_id="6516791">111 Ala. 589, 20 South. 443. We do not find the doctrine there announced, and appropriated in charge 3,- has been qualified since the rendition of that decision. The charge does not undertake, as seems to be the view of counsel for appellant, to define adverse possession. Its office was to deal with the openness, notoriety, and exclusiveness of possession, not adverse possession.
Charge 9 states a self-evident legal truth. The defendant claimed to have bought the land in suit, about 1872, from Col. N. M. Clements, and, having entered into the possession of it under claim, in good faith of ownership, was given a bond for title by Col. Clements. His testimony also tended, to show that prior to 1880 he had paid in full the purchase money. There was evidence tending to prove that the payment in full had never been made by defendant. In 1886, Swann and Billups, trustees, undertook to convey the land in con
Charge 5 and 6, given at the instance of defendant, sought the application of the principle that an instrument purporting to convey to another land held adversely to the purported grantor is void as to the party so adversely holding it. The first (5) concluded, upon condition of belief of the fact from the evidence, against the Swann-Billups deed, executed in 1886, to the Alabama State Land Company; and the other (6), against the Clements quitclaim deed executed in 1891. The former charge (5) omitted in hypothesis the asserted, by defendant, fact that he had paid, prior to 1886, the purchase money to Clements. The latter (6) hypothesized that fact. Counsel for appellant take the stated omission in charge 5 as rendering the charge bad, on the theory and argument that, until defendant had paid the purchase money to Clements, defendant’s possession was that of Clements, and not adverse to Clements, and that, in conveyance, the principle asserted by the charge could not be availed of by defendant, but was available (if at all) to Clements, the then holder of the legal title.
As against all the world except his vendor, a vendee entering upon land under an executory contract of purchase holds adversely. — 1 Cyc. p. 1049, and authorities cited in note 58. Besides, under the relation of trust existing, if the testimony to that end was credited, between Clements and defendant (Rankin v. Dean, 157 Ala. 490" court="Ala." date_filed="1908-12-17" href="https://app.midpage.ai/document/rankin-v-dean-7363770?utm_source=webapp" opinion_id="7363770">157 Ala. 490, 47 South. 1015), in 1886, Avhether the purchase
Charge 6 Avas properly given. If defendant had, prior to 1880, paid Clements the purchase money in full, defendant’s possession thereafter was adverse to Clements. — 1 Cyc. pp. 1047, 1048 and citations made in note 44. Hence the conveyance of Clements in 1891 was, if the facts hypothesized were so found, void as to defendant.
Charges 12 and 13, given for defendant, asserted correct propositions of laAV.- Hollingsworth v. Walker, 98 Ala. 543" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/hollingsworth-v-walker-6515126?utm_source=webapp" opinion_id="6515126">98 Ala. 543, 13 South. 6; 1 Cyc. pp. 1046, 1047, and citations in note 78.
What has been said before in respect to charges 5 and 6 is applicable to charges 14 and 15, given for defendant. The effort to give effect to Code 1907, § 3839, is vain. This action is common-laAV ejectment, not the statutory remedy in that nature. The adverse possession of a part of a tract of land described in an instrument affording color of title, accompanied by a claim, in good faith, of the whole therein described, operates to refer the possession to the territory described in the instrument. The rule is, of course, otherwise as to a trespasser. — 2 May. Dig. 82, subhead. 135, among other authorities. Charges 14 and 15 were not erroneously given to the .jury.
Charge G does not limit payment of purchase money to the land here sued for, whereas the evidence aauis that, defendant’s purchase from Col. Clements included other lands. The charge was well refused.
Affirmed.
Rehearing
ON REHEARING.
Appellee’s counsel take the "point, en rehearing, that it does not affirmatively appear from the bill of exceptions that the deed from Swann and Billups, trustees, to the Alabama State Land Company conveyed the lands in suit; and that, therefore, the elimination, by charges, of that deed from the jury’s consideration could not be pronounced error to reverse, even if the question argued for appellant for the first time on rehearing was resolved in favor of appellant. The point is well taken; and the rehearing is, without determining the argued question, denied.