| Ala. | Nov 15, 1890
The question propounded to the witness Murphy on cross-examination, is not so clearly stated as that we can feel safe in ruling on it.
Considering all the testimony in this case, we feel justified in inferring that defendant B. F. Meadors went into possession of the land in controversy under and with the consent of his father. The fact, unexplained, that the father continued to pay the taxes on the land until his death, showed that he had not relinquished all claim to it. Acquiring possession, not by purchase, but permissively under his father, it requires more than the exercise of the ordinary acts of ownership to convert that possession into an adverse holding. Cultivating the land, and disposing of the crops from year to year, are not enough to accomplish that purpose. To have such effect, in a case like the present, there must have been an open disclaimer, and assertion of hostile title, and knowledge thereof carried home to Isham Meadors, the father. — 3 Brick. Dig. 17, §§ 20, 21; Woodstock Iron Co. v. Roberts, 87 Ala. 436" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/woodstock-iron-co-v-roberts-6513564?utm_source=webapp" opinion_id="6513564">87 Ala. 436. And until such disclaimer is carried home to the holder of the title, the statute of limitations does not begin, to run.
Another principle may shed light on this case. The possession of a tenant in common is not adverse to that of his co-tenant, unless there is an actual ouster, or refusal to let the co-tenant occupy.—Newbold v. Smart, 67 Ala. 326" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/newbold-v-smart-6510876?utm_source=webapp" opinion_id="6510876">67 Ala. 326. Being one of the lieirs-at-law of Isham Meadors, when the latter died, until there was adversary claim set up under the will, or by the personal representative, the heirs-at-law were authorized to occupy the lands which were of the estate of the ancestor, as tenants in common, and the possession of one was not prima facie adverse to the rights of the others. Hence, unless B. F. Meadors had, under the rule stated above, acquired the status of an adverse holder before his father’s death, he could not acquire it afterwards, without actually evicting his co-tenants, or, what is the same thing, refusing to permit them to enter.
We will not point out the defects in the various charges. Charges 2 and 3, given at the instance of defendant, are manifestly wrong; and for those errors the judgment of the Circuit Court must be reversed. The third was not faulty as a universal
• In 1883, while W. K. Meadors was the administrator of the estate with the will annexed, the four brothers, heirs-at-law of Isham Meadors, together with their mother, submitted to the arbitrament of five selected persons, not only all matters and dealings growing out of the partnership, but also agreed “to submit, with the evidence of each for himself, both for and against, all deeds and paper titles of every kind to any property now claimed by us, formerly belonging to said estate and they agreed that the award made by the arbitrators should be “final and binding.” At that time a good deal of litigation was pending between the brothers in reference to property which had belonged to their father’s estate.
The arbitrators acted, making a most elaborate award, covering, so far as we can discover, the entire assets of the estate, real and personal, and every subject of contention between, the brothers, having any connection with the estate of Isham Meadors, their father. Among other findings of the arbitrators is the following: “We find that all the lands claimed by the children and heirs of Isham Meadors, late of Lee county, deceased, of right belong to the estate of said Isham Meadors, and are subject to the payment of his just debts,” after allowing the widow’s dower. This award was rendered in August, 1883, and ascertained several large sums that were due from Isham Meadors’ estate to his several children. It also ascertained other debts due from the estate to creditors other than the; heirs, and who were not parties to the submission or award, aggregating seven hundred and forty-four dollars. The arbitrators awarded that all of said lands, including the tract involved in this suit, be sold by the administrator, W. K. Meadors, for one half cash, and the other half at twelve months, and the proceeds applied to the payment of the debts of Isham Meadors” estate. The estate had been decreed insolvent in 1882, by regular proceedings in the Probate Court instituted for the purpose by the administrator.
On the same day on which the award was made — August 29, 1883 — the brothers executed deeds, one to the other, by which they expressly ratified the award of the arbitrators. The administrator did not sell the land under the award of the arbitrators, but petitioned the Probate Court for an order of sale, obtained it, made the sale, and reported it; it was confirmed, and, under the court’s order, titles were made to the purchasers. These several pleadings came before this court on appeal, and were pronounced regular.—Meadors v. Meadors,
The present suit was instituted in August, 1885, and the defense relied on was the statute of limitations — adverse possession for ten years before suit brought. In preclusion of this defense, among other evidence, the plaintiffs offered the agreement submitting the matters of dispute to arbitration, mentioned above, the award of the arbitrators, and the deeds of ratification. These were offered severally, and as a whole. The court, on objection of defendants, excluded the evidence, •stating the reason on which the ruling was based, as follows: ■“Because the oral and other testimony showed that the agreement and arbitrament were disregarded and never carried out.” 'The only disregard of the award as made, which could affect B. E. Meadors, was that the administrator sold the land under tlie order of sale, and for cash, and not under the award of the arbitrators, and under the terms prescribed by them.
We have shown above that there were other creditors of the insolvent estate of Isham Meadors, besides the Meadors brothers, sons of the testator. Those other creditors were not parties to the arbitration, and hence the award did not conclude them as to the amounts of their several claims, nor as to the several claims of the Meadors brothers. Nor did it conclude them as to the manner and terms of the sale. If sale had been made or attempted under that award, those other creditors could have objected, and required the sale to be made under an order of court, and according to law. Aside from the harassing litigation to which a sale under the award would have exposed the administrator, a title acquired at such sale would probably have been regarded as so questionable, that prudent buyers would have been deterred from bidding. It was both the right .and the duty of the administrator to obtain an order of sale, and to sell under it. We may be permitted to add, that while in the submission the parties expressly embraced all claims to parts of the land which the several contesting brothers had set up, we find no submission of the question as to how the land should be disposed of; and we are not able to see that the manner of disposing of the lands did, or could, exert any influence in deciding the validity of the several claims set up to parts of the land. “An award in part good, and in part bad, may be divided, and the objectionable part rej ected as mere surplusage, if it can be readily distinguished from the rest, and the good part will be sustained.” — 1 Amer. & Eng. Encyc. of Law, 710. The Circuit court erred in excluding the arbitration proceedings from the jury.
Beversed and remanded.