First National Bank v. Johnson

67 So. 234 | Ala. | 1914

SOMERVILLE, J.—

(1) It is clear that upon the paper titles exhibited the plaintiff would have been entitled to recover the tract of land in controversy. -It is clear also that the defendants’ predecessor in title, E. C. Ward, being without color of title, they could defeat the plaintiff’s paper title only by showing an actual adverse possession of the tract by E. G. Ward for at least three years and. three months prior to April 23-, 1906, the date of his sale to the defendant Hutto, whose possession since then is not controverted.

(2) It is insisted for the appellant (plaintiff below) that the evidence fails to show such a possession by E. C. Ward, and that therefore the plaintiff was entitled to a peremptory instruction to the jury.

But there is testimony that E. C. Ward held possession from 1891 until 1906. It is true it clearly appears that he did not live on the land, and that it was cultivated by his tenants only about 5 scattered years .out of the 15; but it does not appear that he did not have possession all the while by some other acts or means, and, as the evidence stands, the question of title by adverse possession was an issue properly submitted to the jury.

(3) It may be remarked that if any of the mesne conveyances in the plaintiff’s chain of title, of date prior to the operation of section 3839 of the Code of 1907, were executed while the land in suit was adversely held, the plaintiff could not recover, as it here sues, in its own name.—Grant v. Nations, 172 Ala. 83, 55 South. 310. The burden of proof was, of course, upon the defendants to show such a status on the dates of those conveyances.

(4) On the issue of adverse possession, it was proper for the defendants to show that E.. C. Ward was claiming the land during the possessory period; that being an essential element of adverse possession.

(5) And although, when this evidence was admitted, it was not relevant to the then sole issue upon disclaimer, it became relevant by the subsequent injection of the general issue; and the error of its original admission was thereby rendered harmless.

The judgment will be affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Gardner,'JJ., concur.