Collins v. Johnson, 57 Ala. 304

Collins v. Johnson

57 Ala. 304

| Ala. | 1876

BRICKELL, C. J.

1. The action of ejectment, and the corresponding real action, which the Code authorizes, is a strictly legal action, involving only the legal title. Equitable defenses can not be interposed to defeat it.—Chapman v. Glassel, 13 Ala. 50; Trammell v. Simmons, 17 Ala. 411; Nickles v. Haskins, 15 Ala. 619; Langford v. Love, 3 Sneed, 308; Jackson v. Parkhurst, 4 Wend. 369. The court was in error in supposing the parol contract of sale to Wilson Johnson affected the appellant's right of recovery. If the contract had remained unrescinded, and possession had accompanied it, the purchase money having been paid in full, it would have raised in the vendee a mere equity, which can not be interposed against the legal title remaining in the appellant.

2. When this cause was formerly before this court it was decided that the appellant by his purchase at the sale made by the administrators of Stephen Johnson, and the conveyance made to him by them, acquired the legal title to the lands.—Collins v. Johnson, 45 Ala. 548. We reaffirm that decision. At the time of this sale, the appellee, who was a son of the intestate, and one of the administrators making the sale, was in possession. The possession was most probably merely by the permission of his father during his life. *307It certainly was without any claim of title. That is not, " however, material, for the subsequent possession was merely by the permission of the appellant, or under a parol gift from him. Remaining in possession by permission of, or under a parol gift from appellant, was an acknowledgment • of his title.—Bourne v. Burton, 6 Eng. Law and Eq. 325. By parol no greater interest (unless it be a lease for one year) than a tenancy at will cap be created. If one, with the consent of the owner, is let into, or remains in posses-sion, under circumstances not showing an intention to create .• a freehold interest, or a tenancy from year to year, he is a tenant at will.—1 Wash. Real Prop. 511. A vendee let in under an oral agreement of purchase, is a tenant at will of the vendor.—Gould v. Thompson, 4 Metc. 224; Manchester v. Doddridge, 3 Ind. 360; Gray v. Stanion, 1 Mees. & Weis. 695. A parol gift of lands creates a mere tenancy at will, . and may be revoked or disaffirmed by the donor, unless an adverse possession under it had continued for the statutory period, which bars an entry into lands.—Van Allen v. Rogers, 2 Caine’s Cases, 314.

3. If there is an entry, or a continuance in possession, under a contract of purchase, by parol or in writing, so long ■as the purchase money is unpaid, the possession is not adverse to the vendor, but in subordination to his title, and is not protected by the statute of limitations, or any presumption arising from lapse of time.—McQueen v. Ivey, 36 Ala. 308.

4. An uninterrupted, continuous possession by a donee, under a parol gift, accompanied by a claim of right to the lands, is adverse to the donor, and will be protected by the statute of limitations.—Moore v. Webb, 2 B. Mon. 282; South School District v. Blakeslee, 13 Conn. 237; Sumner v. Stevens, 13 Metc. 237. To convert such possession into an adverse possession, hostile to the title of the donor, there must have ¡been, for the period prescribed by the statute of limitations, • a claim of right asserted by the donee, and an absence of recognition of the title of the donor. If during the posses- . sion, the donee has recognized the title of the donor, and acknowledged its superiority, the possession is not adverse.

5. The burden of proving the possession adverse is upon •the person alleging it.—Herbert v. Hamick, 16 Ala. 581. It is for the jury to determine-whether the facts exist which will constitute adverse possession. What facts when proved . constitute it, the court pronounces as matter of law.—Benje v. Creagh, 21 Ala. 151; Farmer v. Eslava, 11 Ala. 1028; Her*308bert v. Hamick, supra; 2 Smith’s Lead. Cases, 566. Hostility to the title of the true owner is its indispensable element. If the jury should find that the appellant made a parol gift of the lands to the appellee, under which he remained in possession, claiming that he was the owner thereof, and not the tenant of the appellant, and the possession was uninterrupted and continuous for the period prescribed by the statute, to bar an entry into lands, the possession was adverse, and the appellant can not recover. If the appellee,, when the parol sale to "Wilson Johnson was made, voluntarily surrendered the possession to him, this fact is very material in determining the character of his previous possession. If he was forcibly ejected, that fact is also material, as indicating a want of recognition of the title of the appellant.

6. If the possession of the appellee was merely permissive in its inception; if as a mere, matter of favor, because of his relationship to the appellant, he was permitted to remain in possession of the lands, the possession could become adverse only by a clear, positive, continuous, disclaimer and disavowal of the appellant’s title, and the assertion of a title hostile to him brought to his knowledge. From the time of such disclaimer of the appellant’s title, and the assertion of a hostile title, the possession would become adverse, and' if continuous and uninterrupted for the period prescribed to bar an entry into lands, the appellant can not recover. Without such disclaimer and assertion of hostile title, the length of time during which the appellee may have been in possession is immaterial, and does not affect appellant’s right of recovery.—Tillotson v. Kennedy, 5 Ala. 407; Shelton v. Eslava, 6 Ala. 230; 2 Smith’s Lead. Cases, 566.

An observance of these plain principles will prevent a repetition of the numerous errors committed on the former trial.

The judgment is reversed, and the cause remanded.