71 Ala. 260 | Ala. | 1881
When this case was before in this court, 60 Ala. 582, 602, we said : “To avoid a deed made by one out of possession, it is enough if there be one in adverse possession, exercising acts of ownership, and claiming ■ to be rightfully in possession. Color of title is not necessary.” We fortified that opinion by a citation of many authorities. Possession, to have this effect, must be .actual, not constructive. And it must be marked by acts of dominion, such as the erection of houses, making valuable improvements, clearing lands, claiming ownership, or by some other act, evidencing that the possession is under claim of right. Putting a tenant in possession, who erects a house thereon, and continues to occupy for a series of years, is, unexplained, a possession under claim of right. Much less than this would be sufficient evidence in many cases of adverse holding. Actual possession is an open, patent fact, which furnishes evidence of its own existence. It is notice to all men contracting in reference to the property thus possessed, and is equivalent to actual notice of title, legal or equitable, or of the claim, under which such possession is held.-2 Brick. Dig. 519, § 181.
In paragraph numbered 4J of the general charge, the Circuit Court correctly declared that “no one can sell land which
The question of outstanding title in another. It is true the record shows fully that the property in controversy, if embraced in the tract of the Huntsville Hotel Company, was under mortgage or trust deed to another, to secure bonds and accrued interest, which had' matured when this suit was brought. Hence, the hotel company was in default. The mortgage or trust deed contains the following clauses: “But nothing herein contained shall be construed so as to prevent the Huntsville Hotel Company from using the building for hotel purposes, renting, and receiving payment therefor, of any part of such hotel building, not necessary for the hotel, nor from disposing of any part of the lot or grounds upon which said building is situated, which may not be required for the use of said hotel, nor from using any furniture, stores or fixtures which may be necessary in conducting the business of said company, or from collecting and paying out all or any moneys that now is, or hereafter may be due said company, provided that no default shall have been made in the payment of the interest and • principal of any of the described bonds. . . . . Upon the following trusts, that is to say : In case the said Huntsville Hotel Company shall fail to pay the principal, or any part thereof, or any of the interest on said bonds, at any time when the same may become due and payable, according to the tenor thereof, when demanded, then after sixty days from such default, upon the request of the holder of such bonds, the said Honegan and Hammond — [grantees and trustees] — and their successors in such trust, may enter into and take possession of all or any part of said premises,” etc. It will be seen from these extracts from the trust deed, that the right of the Huntsville Hotel Company to retain possession of the property did not terminate ipso facto with their default in paying the principal or interest of the bonds. There must have been, first, a demand of such payment, second, a request of the holder of such bonds, and, third, a delay of sixty days after such default, before the trustees would be authorized to enter into and take possession. None of these steps are shown to have been taken, and therefore it is not shown that the right
It is settled law — too well settled to require a citation of authorities — that in an action of ejectment, or statutory real action, plaintiff can not recover unless he shows a sufficient legal title in himself, or a right to the possession. The defendant may have no title, may be a mere trespasser; still, if he has not entered as the tenant of plaintiff, and thus recognized his title, it is sufficient for his defense that plaintiff shows no right to recover. An older possession often proves title against one who shows only a later possession, but this rests on the presumption that one who has had a prior possession of land, exercising acts of ownership and control, is treated as the owner against such subsequent occupant, unless the latter shows title in himself, or some other, or unless he has held the possession adversely for a sufficient length of time to bar the plaintiff’s right of entry. In this case the laboring oar was with the plaintiffs, Humes et al. The suit is to recover a part of lot 17 in the city of Huntsville. The deeds through which plaintiffs attempt to deduce their title, describe lot 17 as containing a half acre. It is bounded north on Clinton street, and west on Gallatin street. If the lot is a square, each of its four sides is about one hundred and forty-seven feet and eight inches in length. The plaintiffs in this case do not, as we understand the case, rely on previous possession in those under whom they claim. They rely on a documentary chain of title, commencing as far back as 1816. There was then a deed from Pope to Cannon, conveying lot 17, town of Eluntsville, fronting Clinton and Gallatin streets, described as “ a certain parcel or half acre of land.” Deed, December 18th, 1818, from Cannon to Price, conveying same lot by same description. Deed, November 23rd, 1822, from Price to Stokes, conveying same lot by same description, “with the reserve of t/wenty-fvoe feet fronting on Gallatin street where the brick house stands, running back seventy four feet nine inches, at right angles.” Deed, February 4th, 1823, from Stokes to Eogers, conveying same lot with same description, and same reservation. Deed, January 31st, 1826, from Eogers to Jamison, conveying same lot with same description and same reservation. Title is thus traced, and
Defendant’s chain of title to that part of lot 17, which it is alleged was conveyed by sheriff to Elliott, and fronting on Gallatin street fifty feet, is as follows': Deed from Mrs. Hill to Battle, April 9th, 1858, conveying part of lot 17, “ commencing at the north-west corner of the little brick house on Gallatin street, running thence eastwardly, at right angles with said street, and parallel with Clinton street seventy-four and one-half feet — thence at right angles to Clinton street — thence
It is contended for appellant that the deed from the sheriff to Elliott, and those which follow it, are so indefinite in the description of the property sold and attempted to be conveyed, as to be void for uncertainty. This can hardly be affirmed, as matter of law, on the face of the deeds. True, they speak of part of lot seventeen, showing that the whole of. that lot was not embraced in it. But we can not judicially know the extent of that lot’s front on Gallatin street. Its entire front on that street, looking alone to the deed, may have been only fifty feet. Or it may be that Jamison, at that time, owned a defined part of the lot fronting on Gallatin street, measuring fifty
In the affirmative charge is the following language: “If you believe from the evidence that Jamison owned lot No. 17, one side of which was on Gallatin street, and that he had previously sold all of said lot on Gallatin street that he owned but the fifty feet, and that that portion was known as the Jamison lot, then you may look to that evidence to guide you to a concluí sion, whether or not the fifty feet fronting on Gallatin street, mentioned in Acklen’s [sheriff’s] deed, included or not the lot, or portion of land described in plaintiffs’ complaint.” This part of the charge was specially excepted to. As we have said, the record affirms it contains all the evidence, and it contains no testimony that Jamison had previously sold any part of lot 17 fronting on Gallatin street. Neither does it contain any evidence that the part of the land in controversy “ was known as the Jamison lot.” This charge, then, was abstract, because some of its predicates are unsupported by testimony. If an abstract charge, though asserting a correct legal proposition,.
Reversed and remanded.
