Gillespie v. Gillespie, 43 So. 12

Gillespie v. Gillespie

43 So. 12 | Ala. | 1907

McCLELLAN, J. —

He who enters into the possession'

of lands under a parol gift is a tenant at will, until there has been by him such adverse possession as, .if continued for the statutory period, will work divestiture of the donor’s title. The possession, to merit the protéc-' tion of -the statutory bar, must be uninterrupted and continuous, accompanied by a. claim of right to the land and hostility to the title of the donor, and without recognition thereof. — Collins v. Johnson, 57 Ala. 304; Tru*187fant v. White, 99 Ala. 526, 13 South. 83; Boykin v. Smith, 65 Ala. 294; Burrus v. Meadors, 90 Ala. 140, 7 South. 469. Conceding, for the purposes of this opin: ion, that appellant’s childless uncie by parol gift installed appellant in possession of the “Killough place,” a concession of very doubtful support in this record, we do not think appellant has discharged the burden of proof assumed by him in his pleadings; and our conclusion, after a careful consideration of the legal and competent testimony offered, may be rested, on the part of alleged donor, upon his acts in and about the “Killough place,” including its improvements by him, and the unvarying assessment and payment of taxes thereon, and his negotiations for a sale of the minerals underlying the land; and, on the part of the appellant, the assertions, undenied by him, to the effect that his uncle had not given him that place, thereby evincing an. entire absence, in his possession, of hostility to the title of the donor, and' also appellant’s failure to himself return the land for taxation in his own right, affording, in connection with .the 'other evidence, the inference that he claimed no taxable inteiest in the property. — Green v. Jordan, 83 Ala. 220, 3 South. 513, 3 Am. St. Rep. 711. Where a donor alone assesses and pays the taxes on the alleged subject of the gift for a period of nearly 20 years succeeding the time of the alleged gift is, as matter of evidence and unexplained, inconsistent with a possession by a donee that may ripen into a fee estate; and such acquiesence in the annual proclamation by a donor of his title is a fact of strong probative force that the dunce’s possession was in subordination to the title and in recognition of it. The decree, being in accord with this conclusion, is affirmed.

Affirmed.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.