Hinton v. Fanner, 42 So. 563

Hinton v. Fanner

42 So. 563 | Ala. | 1906

TYSON, C. J.

— We entertain the opinion that the deed from Ezekiel Anders, Jr., to Ezekiel Wright, trustee for Elizabeth Hall, conferred no title upon Wright *213to the lands conveyed by it, but that the legal title to them passed under it into the beneficiary named in it, Mrs. Hall. — Section 1027 of the code of 1896, and authorities cited under it. There was, therefore, no error-in admitting it in evidence.

Under the undisputed evidence it cannot be doubted that the plaintiffs, who are the only heirs at law of Elizabeth Hall, deceased, are entitle to recover, unless the defendant’s deceased husband acquired their estate by adverse possession. Elizabeth Hall, from whom they derived title by descent, when she married Hinton in 1856, was the owner of and in possession of the lands . After their marriage'Hinton lived with her upon them until her death in 1863. After her death he remained upon them, being entitled to the possession as a tenant by curtesy until his death in 1902. In 1858 he acquired a deed to the lands from certain partiés who had no title whatever in them. After his first wife’s death he intermarried with the defendant Mary J. Hinton, and in 1868 made her a deed to them. These two deeds were offered in evidence by defendant as color of title, but were excluded by tlxe trial court. The theory of the defendant seems to be that the deeds should have been admitted as tending to show adverse possession of the lands by Hinton, the husband. If it be conceded that the husband, under any circumstances, can acquire title to the lands of his wife by adverse possession, he certainly cannot do so by having a joint possession with her. One of the essential elements of adverse possession is that the possession must be exclusive. “Two persons cannot hold the same property adversely to each other at the same time.”—Stiff v. Cobb, 126 Ala. 381, 28 South. 402, 85 Am. St. Rep. 38; Wells v. Am. Mortgage Co., 109 Ala. 430, 444, 20 South. 136.

Nor was the subsequent possession of Hinton, after the death of his first wife, having life estate in the lands as tenant by curtesy, adverse to the plaintiffs, who owned, the fee in the remainder. During his life at no time did their right of entry accrue. So long as his life estate in them endured, he was entitled to the possession; and it was not until his death that the right of the plaintiffs arose to sue for the establishment and re*214covery of tbeir interest. —Edwards v. Bender, 121 Ala. 77, 82, 83, 25 South. 1010, and authorities there cited.

There is no error in the record .of which the appellant can complain, and the judgment appealed from must be affirmed.

Affirmed.

Dowdell, Anderson, and McClellan, JJ., concur.