50 So. 230 | Ala. | 1909
The trial court was clearly in error in giving the general affirmative charge for the plaintiff. The real question at issue was whether or not the defendant, and those under whom he claimed title, had been in the adverse possession of the land sued for for 10 years prior to the suit, so as to perfect title thereto in the defendant. Under any and all of the evidence this was a disputed question of fact and not one of law. The jury only, and not the court, should have decided this issue.
The plaintiff, by the bringing of his suit, admitted that defendant was then in possession. His possession he attempted to show was adverse, and was the same then that it had been for 10 years prior thereto. There was
The appellee concedes the well-established proposition of law that actual possession of a part of a tract of land described in a color of title is, by legal fiction, extended to the entire tract so described, but claims that there is a qualification, limitation, or exception to this rule, to the effect (to quote from brief of counsel) that “If A', conveys to B. a tract of land of which he is in adverse possession, and of which he puts B, in the adverse possession, he cannot constructively extend B.’s adverse possession to 'C’s land describing C’s land in the conveyance to B., along with the land which A. owned”— that B’s possession under his deed will not thereby extended to C’s land. If this qualification, exception, or limitation of the general rule be true or correct, as to which we do not decide, the case made by the record does not wholly fall within it, nor is it wholly taken without the influence of the general rule. The case falls within the limitation to the extent that appellee has title to a part, and to a part only, of the land described in the color of title, but for the adverse possession, and does not claim title to the other lands described in the color; but, so far as the record shows, the defendant and each of those under and through whom he claims title by adverse possession had the same title, claim, and right to the whole. They did not claim the two parts 'under different rights or titles. They may have bad no title or right to any part except that acquired by adverse possession. If they had no title to that claimed
There is no evidence that Mrs. Wheeler or her intestate did not claim to own, or have title or right to convey, the three 40’s in question. It is, however, shown that she did not then have the legal title thereto, and' it is not shown that she did have the legal title to the other 40, further than possession carries with it a presumption of title. There is nothing to show that the vendor in this case conveyed two separate and distinct tracts of land. Only one was conveyed. Each 40 acres in a conveyance does not constitute a separate tract. The fact that plaintiff, a stranger, did not claim to own the whole, but only a part, could not have the effect to make two tracts. The case at bar does not fall within the qualification declared in the case of Woods v. Montevallo, etc., Co., 84 Ala. 560, 3 South. 475, 5 Am. St. Rep. 393, which is again announced in the case of Henry v. Brown, 143 Ala. 456, 39 South. 325.
The color of title has its inception in Mrs. Wheeler’s deed as administratrix. The claim under color of title does not antedate this deed; but it is claimed to exist only thereafter, and to continue down to the time of trial. The source of defendant’s title and claim was the deed of the administratrix and possession held thereunder. If Echols took possession of a part of the lands described in the administratrix’s deed, and held possession under it, there is nothing in this record to show why it was not, by the rule or legal fiction, extended to the whole. The fact that the legal title to parts of the tract described in the color of title was in different persons, and not in one and the same can make no differ-: ence. To constitute color of title it is not necessary that the grantor should have title to the whole or a part of the entire tract described. — Henry v. Brown, 143
The mere fact that a deed passes the legal title to a part of the tract, but not to the whole, does not prevent the application of the rule as to the part to which it does not pass title and limit it to only that part to which it passes title. As to that part there is no need of the fiction, to perfect the title. The deed itself passes title thereto'. If it had been shown that the administratrix’s intestate had title to the one 40, or had color of title thereto only, then his possession of that 40 under that deed could not be extended to the other three 40’s which were first described or mentioned in the administratrix’s deed. Such is the doctrine announced in the cases of Woods v. Montevallo, etc., Co., 84 Ala. 560, 3 South. 475, 5 Am. St. Rep. 393, and Henry v. Brown, 143 Ala. 446, 456, 39 South. 325. — See, also, 1 Am. & Eng. Ency. Law, 873.
An instrument, to constitute “color of title,” need not be valid as a muniment of title. If the instrument itself passes, or constitutes title, it is not color of title. It is in a sense the title itself. The very term implies that it is not valid to pass title. An absolutely void instrument may be good color of title. “Color of title” is said to be that which in appearance is title, but which in reality is no title. — Wright v. Mattison, 48 How. 50, 15 L. Ed. 280; Torrey v. Forbes, 94 Ala. 135, 10 South. 320; Abercrombie v. Baldwin, 15 Ala. 363; Saltmarsh v. Crommelin, 24 Ala. 347. “Color of title” and “claim of title” are often confounded; the terms being used as if synonymous, whereas in fact they are very different
Good faith is often spoken of, in connection with adverse possession — sometimes appropriately, and sometimes not. It is not necessary that the claim of title should be honestly believed to be good. It is enough if the claimant really intends to assert title and to rely ujion it as hostile or adverse to' the true owner or to the world.- Baucum v. George, 65 Ala. 259; Saltmarsh v. George, 65 Ala. 259; Saltmarsh v. Crommelin, 24 Ala. 347. The only requisite of good faith or motive, in adverse possession, is to show that the claimant actually intended to claim the land as his own, to the absolute exclusion of others.
It is unnecessary to pass upon the other questions, as they may not arise on another trial.
The judgment is reversed, and the cause remanded. Reversed and remanded.
