108 Ala. 71 | Ala. | 1895
Accoi’ding to a tendency of the evidence in this case, the defendant’s possession of the land sued for upon which he relied as vesting the title in himself by an adverse holding of more than ten years duration,- “was not adverse, but was inrecogntion of a supposed title in the government, or in the railroad; that defendant while in possession of said land spoke of its being government or railroad land; that the defendant purchased a pre-emption claim from Franklin Hale about twenty years ago, and that he claimed during the time of his occupation of the lands only a pre-emption right and his improvements upon said land,- and that Franklin Hale claimed that he had pre-empted said lands and that he occupied and claimed said lands because he had pre-empted them, and that while defendant was residing on said land he often spoke of it as pre-empted land.” A pre-emptor is one who by settlement upon and improvement of public land acquires a right to purchase the particular land to the extent of one hundred and
We do not find that any violence was done to the foregoing principles by the instructions given at the instance of the defendant, and now presented for review. The defendant’s evidence tended to show that he purchased the rights of Hale in the land taking from him a paper
Charge 6 is not open to the objection made to it in argument. Open, notorious and continuous adverse possession involves a claim of the whole title and ownership; and hence this'charge does not violate “the rule that to constitute adverse possession the claim must be of the entire fee and against the right of all the world.”
Charge 7 is admitted by counsel to state the law correctly “as it was prior to the act regulating adverse possession. Acts 1892-3,p. 478. ’ As the defendant’s possession, if it was adverse, had ripened a perfect title in
If these charges are faulty at all it is in respect of their omission to define “adverse possession,” and perhaps they might have been well refused on that ground; but it does not follow that the giving of them was erroneous .
Error, to authorize and require a reversal, must affirmatively appear. The presumption here favors regularity and correctness in the rulings of nisi prius courts, It is probable that plaintiff’s question, “You gave in your property again under oath in 1892?” propounded to the defendant had reference to the assessment of the latter’s taxes for the year named, and if that had been made to appear the question should have been allowed; but there is nothing in the record on the subject but the question itself, defendant’s objection to it — one ground of which was that “it did not appear how or in what way the question was related to any matter in the cause” — the court’s ruling upon the objection and plaintiff’s exception thereto. We cannot, therefore, clearly see and affirmatively declare that the evidence sought to be elicited was relevant to the issues in the case.
There being evidence tending to show that the defendant had said explanatory of his possession that he held under pre-emption right and that these were “preemption lands,” it would have been contempt to have asked him, what he understood “by pre-emption lands?” This would have had a bearing on the character of his claim ; but the understanding of another witness, or the general understanding, of the phrase was not competent to give a meaning to it in the mouth of the defendant.
Plaintiff showed muniments of title to the land in suit. In rebuttal he offered to prove by parol “that one E. J. Beck was in the actual possession of the north half of the northeast quarter of section 27, being the section in which the lands in suit are situated, and adjoining them, holding the same under a lease from plaintiff, and had so been in the actual possession of said land for several years before the suit was brought, but that said Beck did not take possession of said land until a long number of years after the defendant went into possession of the land in suit. Counsel for plaintiff at the time of making said offer, explained that the object sought was to show
The judgment of the circuit court must be affirmed.