89 Ala. 283 | Ala. | 1889
Both parties concede that J. M. Gafford was formerly seized and possessed of the land in controversy. Appellee', who was the plaintiff in the Circuit Court, derives title under a mortgage executed by him, February
The legal title in the lands, being vested in Gafford when the mortgage was executed, thereby passed to plaintiff. There is no pretense that he had notice of Mrs. Gafford’s claim. The possession of the mortgagor thereafter was referable and in subordination to the mortgagee’s title, unless rendered adverse by an open and positive disclaimer of his title brought to his knowledge.— Coyle v. Wilkins, 57 Ala. 108. So long as the mortgagor holds in subserviency to the title of the mortgagee, the possession of his vendee, under a parol contract of sale, can not become adverse to the mortgagee, unless there is a disclaimer of the title of the mortgagor, and a holding adversely to him. Counsel invoke the principle pronounced in Collins v. Johnson, 57 Ala. 304, and Vandiver v. Stickney, 75 Ala. 227, that an uninterrupted possession of a donee, under a parol gift, or by a vendee under a parol agreement to purchase when the purchase-money is paid, accompanied by a claim to the lands, is adverse to the donor or vendor, and will be protected by the statute of limitations, maturing into a perfect title, if continuous for the period prescribed by the statute. But, to have such effect, the facts essential to constitute an adverse holding must enter into, and characterize the possession. The mere assertion of a hostile claim or right and of possession, unaccompanied by adverse actual occupancy, is insufficient.
There is no dispute that Gafford entered into possession of the lands in 1862, and continued in possession, claiming them as his own, until February, 1872, the time of the alleged parol contract of sale. While Mrs. Gafford testifies,
Possession, to be adverse, so as to vest title in the possessor after the lapse of the requisite time, must be, not only open, notorious and continuous, but also exclusive. It must operate to oust or disseize any other person who may claim title, or right of possession. In order to fall within the operation of the statute of limitations, the possession must be sufficiently exclusive to put the dispossessed claimant to his action or entry. This can never be the case, where the party having the title is in possession, though it may be joint. Two contemporaneous possessions of the same property, each adverse to the other, is a legal absurdity not conceivable. Hence, when two persons are in possession, claiming under different and hostile rights, the law refers the possession to the party having the title.—Pickett v. Pope, 71 Ala. 122; Bragg v. Massie, 8 Ala. 89; Farmer v. Eslava, 11 Ala. 1028.
It may be, that under the laws in force at the time of the transaction in question, a title would vest in a married woman by the mere force of an uninterrupted possession of real estate for the statutory period, under a parol gift or purchase, where the husband never had nor claimed any title, nor interfered with her possession. There is a clear distinction between a possession of that nature, and a possession under a gift or purchase directly from the husband. There being no actual change of possession, the oral agreement between Gafford and his wife was void; it vested no right nor equity, and created no separate estate. It is material only to the extent it may constitute the origin and basis of an adverse possession. Had Gafford executed a conveyance directly to
Affirmed.