108 Ala. 563 | Ala. | 1895
The property is described in the-complaint as situate in the county of Mobile, State of Alabama, under a videlicet, as “on the Government street road, next east of the late residence of the late Hr. J. H. Woodcock, being a part of the fractional section numbered (20) twenty, Township (4) four, South, in Range (1) one, West, and described as follows, viz.”' Then follows a more particular description by metes and bounds.
The defendant took issue upon the complaint, and the defense, as developed by the evidence was, not that the defendant had paper title which he could trace to the government, but that he, and those under whom he claimed, had held continuous adverse possession of the property sued for, for ten years before suit brought.
The plaintiffs claimed to derive title from the government by virtue of a grant from Spain to one Benjamin Uuhroca, of date 26th February, 1803, of what is known and called the “Uubroca Tract,” -confirmed by act of Congress of date, May 27th, 1840, to the heirs of Wm. E. Kennedy, on which a patent afterwards issued to them, on the 20th day of February, 1885 ; but in this patent, the land is described as lying in section 24.
The defendant, in order to show color of title, introduced thirteen successive deeds more particularly referred to hereafter-, the first, from Julia Elder and husband, to Duke W. Goodman, of date, January 10th, 1849, and the last, from E. Majersld and wife to himself, of date February 16th, 1892, in each of which deeds, the-property conveyed is described in the same manner, and as described in the complaint, — as lying in fractional section twenty, followed by substantially the same more particular description by metes and bounds. There was no suggestion, so far as appears, in the course of the-trial, that the land sued for was misdescribed in the complaint, or that defendant was not in possession of and resisting a recovery by plaintiff in this suit, of the identical land- of which he was in possession. Indeed his plea admitted possession. Nor was there any objection to the admission of the evidence tending to show title from the government to plaintiffs, or that their pat.ent was to section 24, and not to fractional section 20. The charges asked by defendant are set out in the transcript, and neither related to a variancé between the alle-
There is no dispute as to the fact, that plaintiffs aré the heirs of Wm. Kennedy. It is stated in the bill of exceptions, that Wm. E. Kennedy died April 3rd, 1825, and that Mary E. Carter was one of his heirs, and died before the bringing of this suit, and it was admitted that the plaintiffs are all of the heirs of said Mary E. Carter deceased.” It was further shown that by a partition between the Kennedy heirs, as shown by their deed of 1st day of August, 1850, this “'DubrocaTract,” was set apart and conveyed by them to said Mary E. Carter. It is contended by defendants, that this deed of partition does not show title to this particular tract to have been conveyed to said Mary E., since the.proof shows, that there were three tracts with the same designation, and the deed does not identify the particular one of them, which was set apart to her.
But this is a mistake. The two other tracts referred to, were numbered in the register of claims in the general land office, 16 and 17, and were claims of Hilaire and Maximilian Dubroca, respectively, of 640 acres,.
The register of the land office, was admitted in evidence against the proper objection of plaintiff's, and ih ought to be stated, was improperly allowed to be introduced. It had no relevancy to the lot sued for.
By the evidence, it satisfactorily appears; that the plaintiff's own the legal title to this tract of land sued for, derived from the government, unless they have been disseized by the defendant and those under whom he claims, by a continuous adverse possession for ten years before suit brought. The burden is on him to establish this title, and if he fails, of course he has no case. He claims directly under a deed from one Majerski and wife, of date Feb. 16, 1892. The defendant introduced twelve other deeds, beginning with the one from Franklin C. Heard and wife, to Julia Eider, of date April 12, 1846. These deeds were properly admitted in evidence, not to show an original paper title in defendant, better and older than plaintiff's, but to show claim and color of title, on which to base his alleged adverse 'possession for the period to bar plaintiffs’ title.
Julia Elder and her husband conveyed to Duke W. Goodman, bv deed dated January 10, 1849. Goodman and wife conveyed to Wm. Hudson, by deed of 22nd May, 1849 ; and Hudson and wife to Robert Dent, on April 26th 1853 ; and he to Dennis Dent, in trust for Frances and George Dent, by deed bearing date the -day of-1850, but not acknowledged or filed for record, until the 5th of January, 1854 ; and Dennis Dent and wife, to Charles A. Marston, by deed dated 21st January 1860; and he to Robert W. Hallett, by deed of November 10th, 1861; and he to Mary Holcombe, by deed dated July 13, 1863 ; and .she to Robert W. Hallett, by deed of January 8, 1864; ‘and he to Charles A. Marston, by deed of March 8, 1864; and he to Catherine McCarron, by deed of July 13, 1868 ;
The defendant failed to prove, that any of these grantors were ever in the actual possession of said property, except Mrs. Elder and her husband, and Dennis Dent. Franklin C. Heard, the parent grantor, is not shown, certainly, ever to have lived on the land, nor does it appear what claim or right he had, if any, to the property. The defendant’s proof does show, that he lived west of this lot, with the Woodcock lot intervening. It was ■shown, that Mrs. Elder and her husband built a house on the lot, but how long they occupied it, is hot shown. Their title, whatever it was, lasted only about two years and nine months., The proof as to Dent’s occupancy was by Dr. Owen, who testified that he lived there one summer, and by Mr. Bright, that he lived there from the Fall of 1852 to the summer of 1853. The defendant’s proof does further show, that the place was very well kept up, to the time of the war ; that the house on it was destroyed in 1865, and no one occupied of was in possession of it, until defendant entered under his deed from Majerski in 1892. It will be seen, that with the exception of. Dent, there is no proof of the actual possession of this lot by any one from whom defendant proposes to derive title by adverse possession, for any definite time, and in Dent’s case, the proof shows a very temporary possession by him, not longer than from three to six months. Continuity is an indispensable element of an adverse possession. If several enter at different times, and there is not a privity of estate between them, such as ancestor and heir, vendor and vendee* landlord and tenant, the several possessions cannot be tacked, so as to make continuity of possession on which th e statute of limitations will operate ; but if there is such privity, for the purpose of completing the bar, such possessions may be tacked and treated as one continuous holding. Riggs v. Fuller, 54 Ala. 141 ; Lucy v. Tenn. & C. R. R. Co., 92 Ala. 246. Admitting defendant’s right to tack any of these alleged holdings, we are .left by his proof entirely in the dark, as to the period under each one that might be so connected, except from April, 1892, when defendant entered, to July 18th, 1893, when this suit was commenced, and for about three to
But, outside of this, the defendant"has shown the entry on and possession of the premises by one Sage. George Sage testified, that his father moved on the place, in the early spring of 1853, when the witness was a boy, eight years old ; that his father died in 1861, and his mother removed from the place in the Fall of 1864; that his father claimed the place by contract with ■Charles Marston, and said he purchased it from him, but no title appears ever to have been made by Marston to' Sage. The proof as made by the defendant, is in rather a singular and contradictory state, as to Sage’s possession. Dr. Owen, who seemed to enjoy good opportunities for knowing, says, that Sage lived there “a short while,” he did not know how long. Glennon, another witness of defendant testified, that he knew the place in 1857 or 1858, and Sage’s family lived there then. The deeds introduced by defendant, as color of title, show that Charles Marston, under whom it is claimed Sage entered, did not acquire his deed to the land, until January 3, 1860, and he conveyed to Hallett, May 10, 1861. It is difficult to understand, therefore, how Sage could have gone into the possession of the land under a contract of purchase from Marston in 1853, when it is shown that Marston had no title, and is not shown to have set up any claim, before January 1, 1860. The true explanation, perhaps, is, that George Sage, who was a boy only about 8 years of age at the time, was mistaken in saying that his father went in possession in 1853, by an arrangement with Marston, but that it was in 1863, when he entered under such arrangement. This comports with the statement of defendant’s other witness, Dr. Owen, who testified that Sage occupied the lot “a short while.” But, allowing that he went in, in the early Spring of-1863, and vacated at the beginning of the Fall of 1864, and allowing this to be
The evidence shows, that the Dubroca tract, was outlying from Mobile, several miles from the court house, of nearly 700 acres, and for the most part uncultivated, grown up lands, — just such - a territory as on which its owners would bestow little or no attention. Its precise boundaries were probably unascertained, until .Nichol surveyed it, some three months before the trial of this case; and for these reasons, it might have been easily encroached upon by co-terminous proprietors, without any intention of appropriating or claiming land as their own that did not belong to them. The lot in question lay on the extreme west of the tract, was narrow in width, from, east to west, — some two or three hundred feet, — and running north and south with such width, in the shape of a parallelogram, and with length enough, to make ten acres. In these facts, may be found the true reasons, perhaps, for parties buying and selling this strip of land, who had no title to it, and for the plaintiffs not asserting earlier, their title to it. ' The plaintiffs do show, that at different times, in these many, years, they exercised acts of ownership over the tract by selling and renting parts of of it. The witness, Haw-land, testified, — and he is uncontradicted, — that he had been the plaintiffs’ agent for leasing and selling the lands in this tract, since October, 1875 ; that he had been acquainted with the land in suit since he was a boy,’ and had known all about it, since 1875 ; that plaintiffs before that date, leased some of the lands in the tract, and have sold some of them since to different parties ; that this lot and other adjoining lots, as shown on the map, were all open, having small trees coming up on them now ; that when he became agent for plaintiffs in Oct. 1875, there were no signs of any occupancy of the lands thereabouts at all, and in October, 1887, he put a good lawful wire fence around the lands, adjoining the lot sued for, including it and lots 10, 11 and 18, as indicated on the map, and since 1878 has paid the taxes
It follows from what has been said, that the general charge as requested should have been given for plaintiffs. ' This relieves us from reviewing the many other assignments of error.- The same questions will probably not arise, on another trial.
Reversed and remanded.
