88 Ala. 346 | Ala. | 1889
We are unable to find in this record any evidence of exclusive possession of the land sued for in the appellants, or in those under whom they claim, prior to the death of Mary Ward, which occurred some time during the year 1884. On the contrary, it is shown that, up to that time, the possession, whether sole or joint is immaterial, Was in the ancestor of the plaintiffs below. There is some evidence that, subsequent to this event, E. A. Nicholas, through whom plaintiffs claim, while he continued to live on the premises, did so by the special permission, and in recognition of the claim of Camilla Kerr, in such sort as that her possession might have been adverse. There are, also, some facts shown to have been in evidence, from which the jury might have inferred that Mary Ward died more than three years before October, 1887, when this suit was instituted; and hence have concluded that appellants’ possession had been adverse for that length of time. It results from this state of the testimony, that the defense of ten years adverse possession, relied on in the court below, utterly failed, and if error was committed in the rulings of the presiding judge on that part of the case, they were, without injury to the defendants, and can avail nothing on this appeal. — Tiedeman on Real Prop. 698; Pickett v. Pope, 74 Ala. 122.
We are not, however, to be understood as intimating, that the action of the court in refusing to give the charges requested by the defendants, to the effect (1) that the fact that E. A. Nicholas lived on a certain part or lot of the tract, of which the lot involved was also' an integral part, was no evidence of poss'eBsion by him of the latter parcel; and (2)
The issue presented by the plaintiffs involved no inquiry as to the value of the land, either with or without permanent improvements. This inquiry was injected into the case, and made material, by defendant’s suggestion of three years adverse possession and permanent improvements. Upon proof of this suggestion depended certain statutory rights of the defendants, the character and extent of which were to be determined by a consideration of the values, respectively, of' the rents, the permanent improvements, and the land without the improvements. — Code, §§ 2702-2705. Proof of no one of these matters, except the first, was essential to any right asserted by the plaintiffs, but each of them was a material element of the defendant’s right to the statutory judgment which the suggestion invoked. — Coltart v. Moore, 79 Ala. 361.
The suggestion constituted a special defense, in the nature of a cross action for the value of permanent improvements, and the onus was upon the defendants to prove every fact necessary to support their claim. The value of the land without the improvements was such a fact. No proof of it was offered. The suggestion, therefore, was unsupported in a vital particular, and the direction to the jury to disregard it was free from error.
It is insisted, however, that at common law, and irrespective of the statutory suggestion of three years adverse possession, defendants were entitled to set off the value of
The cases of Turnipseed v. Fitzpatrick, 75 Ala. 297; Hairston v. Dobbs, 89. Ala. 589, and Dobbs v. Hairston, Ib. 594, are not in point. They relate solely to the right given
The judgment is reversed, and the cause remanded.