Bradshaw v. Emory

65 Ala. 208 | Ala. | 1880

BRIOKELL, C. J.

— It is a legal title, and a present right of entry and possession only, which will support an action of ejectment, or the corresponding statutory real action. A. prior possession under color of title, if the plaintiff is not barred by the statute of limitations, will support the action against a trespasser, or a defendant not showing a better title. Of, this, as was said in Russell v. Erwin, 38 Ala. 48, “ the authorities are such as to leave no room for doubt.” Whether the contract between the plaintiffs and Prescott would have enabled them to defend, if Prescott had been suing for possession, or would have enabled them to sue him, if he had entered, is not material in this case, to which he is neither party nor privy,' and in which no person claiming under him is a party or privy. The contract is color of title —shows the plaintiffs were not in possession as mere intruders, or trespassers, but had entered under a claim of right. The possession under that claim, an intruder, a trespasser, asserting no title in himself, and no right of entry derived from the true owner, cannot disturb — Anderson v. Melear, 56 Ala. 621.

The Circuit Court was in error in not admitting, as color of title, the contract between plaintiffs and Prescott, and in the charge given.

Beversed and remanded.