104 Ala. 625 | Ala. | 1894
The law as applicable to the facts of the case, and by which it is easily determinable, is so well settled as to need no further discussion. For the purposes in hand, we need to do no more than to restate some' of our oft repeated holdings on the subject. Recently we stated, as a summation of the authorities, that a claim of title founded on ten years adverse possession, to have the effect to bar the title of the legal owner, must have been hostile or adverse, actual, visible, notorious and continuous, under a claim or color of title; that no right can spring from mere claim or color of title, unaccompanied by actual possession, and that, in the absence of such an adverse possession as falls within this definition, there is no room for the assertion of title by adverse possession, and the question of superior right of possession between, the parties, becomes, at law, one of superior legal title. — Parks v. Barnett, ante, p. 438; Bernstein v. Humes, 71 Ala. 260; Dothard v. Denson, 75 Ala. 482; Hughes v. Anderson, 79 Ala. 209 ; Alexander v. Savage, 90 Ala. 385 ; Murray v. Hoyle, 97 Ala. 588.
It must be shown — and the burden is on him who asserts a claim adverse and hostile to the legal title— that the owner knew that the adverse holder claimed in his own right, or it must be so open and notorious as to raise the presumption of notice. — Ponder v. Cheeves, ante, p. 307 ; Normant v. Eureka Co., 98 Ala. 181; Lucy v. Tenn. & C.R. R. Co., 92 Ala. 250 ; Beard v. Ryan, 78 Ala. 44; Bell v. Denson, 56 Ala. 448 ; Farley v. Smith, 39 Ala. 44 ; Lucas v. Daniels, 34 Ala. 188.
We have carefully reviewed the facts of this case. From these it does not appear, that either one of the purchasers of said land at sheriff’s sale, ever went on
We have traced these several acts of possession and occupancy upon which defendants rely to base their title by adverse possession, to show that they were fitful, uncertain and not continuous. There was not a fact in evidence tending to show that these different possessions could be tacked as continuous ; but they were separate, independent, and remote, the one from the other.
One of the defendants’ witnesses, Wade, who had a saw mill not a great way off, testified that in 1879, he endeavored for about six months, by making inquiries, to ascertain who owned these lands, and was unable in that time to ascertain who was the owner. Certainly, the possession and claim of defendants could not have been very open and notorious, such as would imply a knowledge of it on the part of the plaintiffs or others, if such were the case. And again, one coming to investigate the reality and foundation of this alleged hostile, adverse possession, can not well understand why, if it existed, the defendants might not have established it by satisfactory proof. Where are DeBardeleben, Noble, Mount and other officers of the Eureka Company? Not one of them have been examined.
The conclusion is, they knew nothing, and of all men, it seems, they would have known the most. The evidence offered falls far short of establishing any continuous adverse holding by the defendants for ten years, at any time since their purchase of said lands in 1855.
Of the introduction of the record of the chancery suit between these parties, to establish the sheriff’s deed and divest the title out of plaintiffs, we may say no more
Affirmed.