Farley v. Smith
39 Ala. 38
Ala.
1863
Check Treatment
A. J. WALKER, C. J.

It is contended that the charge, which the court below refused to give,-would have excluded from the consideration of the jury two material facts, and was, therefore, objectionable. Those two facts are, the payment of the purchase-money, and the cutting of timber on the land in 1839 and 1840. The bond for titles recites the payment of the purchase-money; and it might be argued at least, with much plausibility, that the request to charge, by referring to the bond for title as the source of the defendant’s claim, embraces the fact of the payment of the purchase-money. But the charge ashed the enunciation of a certain conclusion to the jury, if they believed certain facts. Now, if, upon the finding of those facts by the jury, the conclusion was correct, notwithstanding the existence of another fact, the omission of that fact is no reason for the refusal of the charge. If, then, it be found that the proposition of the charge was correct, notwithstanding the existence of the omitted fact, it was erroneous to refuse it. Therefore, if the charge does ignore the fact of the payment of the purchase-money, it merely devolves on us the duty of considering it upon the concession of the omitted fact. In reference to the other asserted fact, that timber was cut upon the land in 1839 and 1840, it is barely necessary to say, that there was only a slight tendency of evidence to prove it, and the charge had the effect of referring the credibility and consideration of that evidence *42to the jury, and claiming a verdict only upon their denial of all influence to that evidence. This certainly afforded ho ground for its refusal.

[2.] The plaintiff claimed title to the locus in quo, under' a patent to Hoxey, dated 6th August, 1846, as the assignee of a Creek Indian reservation, and a deed from Hoxey and wife to Mm, dated 29th December, 1854. This suit was commenced in 1859. It is decided in this' State, that the statute of limitations could not commence to run against the plaintiff, holding under the patent above stated, before' the date of the patent. — Iverson & Robinson v. Dubose, 27 Ala. 418 ; Wright v. Swan, 6 Porter, 84. The interval, however, between the date of the patent and the commencement of the suit, is sufficiently long to have ripened an adverse possession into a title. During this interval, the conveyance to the plaintiff was made. The question of adverse possession may, therefore, have arisen in the case, either in reference to the statute of limitations, or the validity of the plaintiff’s deed, or in reference to both. The record does not enable us to ascertain the precise point of view, in which the question became material on the trial. We shall, therefore, endeavor to adapt our opinion to the appropriate government of the proceedings of the circuit court, whether the question is material in the one or the other aspect, or in both.

[8.] Where the purchaser of land holds under a bond for title's, and has paid the purchase-money, it is settled in this State, that he has color of title, at least after the time when, according to the stipulation of the bond, the title was to be made, where the defense is the statute of limitations. On the other hand, our decisions leave room for controversy, whether, under such circumstances, there would be such color of title as would vitiate a conveyance by the owner, while the land was in possession of the obligee in the bond. Ormond v. Martin, 37 Ala. 598 ; McQueen v. Ivey, 36 Ala. 308 ; Sellers v. Hays, 17 Ala. 749 ; Hinton v. Nelms, 13 Ala. 222. Whether any distinction exists between the evidence requisite to show color of title in the two cases, needs not to be determined here; for, conceding to the defendant that he, and the person through whom he derives his claim, had *43color of title, there is no snob possession as is required to sustain bis defense, in either aspect.

[4.] The charge requested by the appellant was, that the cutting of timber, and taking it from the land, for two or three weeks in 1835-’36-’37-’38, and then again in 1856-57-’58, would not sustain the defense of adverse possession. In order that the case can be placed in the most favorable light for the appellee, let it be conceded that the timber was taken horn the land, for the like period, during the years 1839 and 1840; and we shall then have a ease stronger against the appellant than that which is presented, and, in deciding it, we shall pass upon the refusal of the charge asked, and anticipate what will probably be the most unfavorable aspect of the case against the appellant upon a future trial. We shall then have, as the facts, a cutting and removal of timber from the land, in each year, for six successive years, a suspension of all entry upon the land for sixteen years, and the performance of like acts in reference to it in each one of the three years next preceding this suit. Do such facts constitute a possession requisite to sustain the defense in either of its aspects?

The plaintiff’s conveyance was made during the long interval between the acts of cutting and removing timber, and about fourteen years after the last preceding act of that character. The period of ten years next before the institution of this suit commenced in 1849, about nine years after the last antecedent act of cutting and removing timber. To sustain the defense, it is therefore requisite, that the cutting of timber, and its removal from the land, for a short time in each year, should be considered such a possession as would amount to a disseizin of the true owner. Furthermore, it is necessary that that possession should be extended, by construction, through a period of fourteen years, in order that the plaintiff’s conveyance may be vitiated by a disseizin subsisting when it was made; and in order that the defense of the statute of limitations may be sustained, it is necessary that such possession should be extended, by construction, through a period of nine years, when prescription would commence, and then farther carried by construction through seven years,'up to the time *44wben the first of the more recent interferences with the timber was committed.

Certainly, an actual residence upon land is not an indispensable element óf adverse possession. There must, however, be an actual, visible, and uninterrupted possession;, or there can be no dissezin to sustain a prescription, or vitiate a conveyance. — Herbert v. Hanrick, 16 Ala. 581 ; Blackburn v. Baker, 7 Porter, 284 ; Brown v. Cockcrell, 33 Ala. 38 ; Hawk v. Senseman, 6 S. & R. 21 ; Hinton v. Nelms, 13 Ala. 222. We do not mean that there must be a pedis possessio of every part of the land, where there is a title, or color of title; for there a possession of a part is regarded as possession to the boundary specified, if there is no antagonistic possession. — Herbert v. Hanrick, supra; Jackson v. Oltz, 8 Wend. 440 ; Overton v. Davison, 1 Grattan, 211. Nor do we mean that there must be, in all cases, an actual residence upon the land. The possession must be by acts adapted to the character of the land, and must be of a description such as the land is susceptible of. Numerous and conflicting decisions have been made upon this subject,, which we cite and refer to as illustrations of the principle. Tredwell v. Reddick, 1 Ired. Law, 56 ; Williams v. Buchanan, 1 Ired. Law, 535; Boston Mill Corporation v. Bullfinch, 6 Mass. 283 ; Ang. on Lim. §§ 391-4-6-8; 2 Smith’s Leading-Cases, 563; McBeth v. Donnelly, Dudley’s Law & Eq. 177; Overton v. Davison, 1 Gratt. 211 ; Pro. of Ken. Purchase v. Springer, 4 Mass. 416 ; Bailey v. Irby, 2 Nott & McC. 343 ; Davidson v. Beaty, 3 H. & M. 621 ; Parley v. English, 5 Gratt. 141 ; Slater v. Jepherson, 6 Cush. R. 129 ; Porter v. Kennedy, 1 McMullen, 354.

The possession must always bé as definite as the character of the land is susceptible of, and must be evidenced by public acts, such as a party would exercise over his own property, and would not exercise over another’s; must be continued, and so notorious that the owner may reasonably be presumed to have notice of the possession, and of the claim of title. While the cutting and removing of timber from wild lands, unfit for any other purpose, may amount to a possession, which, accompanied by color of title, would •constitute a disseizin, it is apparent that the acts of that *45character done in this case have not been so continuous, .distinct, and notorious, as the rule requires.

Reversed and remanded.