Gary v. Woodham, 103 Ala. 421

Gary v. Woodham

103 Ala. 421 | Ala. | 1893

McCLELLAN, J.

This is a statutory action for the recovery of land. Plaintiffs’ original title is not controverted. But defendants claim title by adverse possession in themselves and those through whom the possession came to them for a period of more than ten years before suit brought. This possession was at all times under color of title transmitted from one to another of those whose possession is sought to be tacked on to that of defendants by conveyances formally adequate to pass title. The only question raised in this regard has reference to the continuity of the possession ; and that upon the following facts : The first disseisor, one Hutto, cleared a part of the land, built a house upon it, and resided therein and cultivated'the cleared land for several years. He then, on the 29th day of December in the year 1885, sold and conveyed the premises to Hawley. Hawley did not live near the land and did not, it appears, buy it for the purpose of making his home upon it. Shortly after this sale Hutto moved off the premises and they were unoccupied during the months of January and February, 1886. Toward the end of the last named month Hawley rented the place for the year 1886 to Carr, who in person or by his tenant went into the occupation thereof immediately after this rental from Hawley, and lived and made a crop upon it during 1886. The circuit court in effect held that this interruption of actual occupation did not break the continuity of the possession relied on by the defendants ; and we are constrained by the authorities to concur in this view. The land was purely agricultural in character. It was at the time of this gap in the occupancy claimed by Hawley who lived away from it, and did not contemplate occupying it himself but only *425through, tenants. The only use such tenants could make of the premises was to raise crops thereon. The possession actually taken the latter part of February was as conservative of this use as had it been taken the first of January or on the day of sale in the preceding December. The sale and transfer of possession by Hutto to Hawley reasonably, if not necessarily, involve'd -some period of time during which there was no actual occupation. Such periods thus incident to or occasioned by changes of possession, or by the substitution in the possession of one tenant for another from year to year, and which are not of longer duration than is reasonable in view of the character of the land, and the uses to which it is adapted and devoted, do not constitute interruptions of possession destroying its continuity in legal contemplation, when, as here, there is no intention of abandoning the possession. They are but incidents of that continuous possession which the land inherently and in relation to the manner of its use admits of, and come within the principles declared by this court in Bell v. Denson, 56 Ala. 444, and Hughes v. Anderson, 79 Ala. 209 ; and in the following cases in other courts, the first three of which are very like the present case on the facts : Hudgins v. Grow et al., 32 Ga. 367 ; Stettnische v.Lamb, 26 N. W. Rep. 374; DeLa Vega v. Butler, 47 Tex. 529 ; Crispen v. Hannavan, 50 Mo. 536; Fugate v. Pearce, 49 Mo. 441; Harper v. Tapley, 35 Miss. 506. These decisions proceed on the idea that notwithstanding such interruptions of actual occupation there is in fact no interruption of such actual possession as the land is reasonably susceptible of; and they are, therefore, not in conflict with that line of adjudications by this and other courts to the effect that the continuity of an adverse holding is broken by the abandonment of possession — such possession as the premises admit of — for any — however short a period of time, even when there is an intention of resuming it. — Louisville & Nashville R. R. Co. v. Philyaw, 88 Ala. 264, and cases there cited.

On the principles we have declared, the evidence was without conflict to the establishment of the defense of adverse possession for ten years before suit brought in the defendants, and the court properly gave the affirmative charge, with hypothesis, in their favor.

The fact that the trial court before the general charge *426was requested by the defendants had given an instruction at plaintiff’s instance which submitted to the jury the inquiry whether the defendants on the evidence had had ten years adverse possession, can not put the court in error in respect of afterwards giving the affirmative charge for the defendants, and this is true whether there was inconsistency between the two instructions or not. The court had no right under the statute to give this charge for defendants until it was specially requested, and until the request was made the trial judge had no ' option but to submit the whole question to the jury; but his doing so did not cut off the defendant’s right to have the jury directed to find in their favor if they believed the evidence, if they were otherwise entitled to this direction. — L. & N. R. R. Co. v. Markee, ante, p. 160 ; L. & N. R. R. Co. v. Hurt, 101 Ala. 34.

We gather from the bill of exceptions that the verdict was originally returned ore tenus by the jury to the court. This was sufficient. — State v. Underwood, 2 Ala. 744. And the action of the court, upon its being found that no written verdict was in the file, in having the jury, which was still in attendance, return a written verdict was superfluous, and obviously not vitiating. And we are not prepared to say that had no verdict been originally returned the matter would avail the appellants since they show no injury resulting therefrom. — Grace v. McKissack, 49 Ala. 163.

We find no error in the record,’either upon the trial or upon the motion for a new trial, and the judgment of the circuit court is affirmed.