Knight v. Hunter

| Ala. | Apr 14, 1908

ANDERSON, J.

Section 1541 of the Code of 1896 requires the filing of a notice in the probate office of an adverse claim to land by one who is in possession as a trespasser or mere squatter, as contradistinguished from one in possession with color of title or bona fide claim of inheritance or of purchase. One can therefore have a bona fide claim of purchase without having color of title; and, conceding that the tax certificate was not color of title, the trial court properly admitted it in evidence for the purpose of showing the character of possession by the ancestor of defendants, and to relieve them from having filed the notice as required by section 1541 in order to claim the land adversely after 1893.— N. & C. R. R. v. Mathis, 109 Ala. 381, 19 South. 384; Ladd v. Dubroca, 61 Ala. 25" court="Ala." date_filed="1878-12-15" href="https://app.midpage.ai/document/ladd-v-dubroca-6510132?utm_source=webapp" opinion_id="6510132">61 Ala. 25. Nor was there error in permitting the defendants to introduce evidence of adverse possession subsequent to the act of 1893 (Laws 1893, p. 478), because notice of their claim had not been filed in the probate office. The defendants had the right to show the assessment of the land for taxes, not to show possession of same, but to be taken in connection with the. evidence of actual possession to show claim of ownership and the extent of the possession.' — Chastang v. Chas-tang, 141 Ala. 461, 37 South. 799, 109 Am. St. Rep. 45; Jay v. Stein 49 Ala. 521.

The trial court erred in not permitting the plaintiffs to prove acts and declarations on the part of R. S. M. Hunter against his claim or possession, such as his effort to buy the land, etc., from Wood, before his death, whether he was on the land at the time or not. It was a declaration against interest. The defendants were claiming under said Hunter, and had offered proof of his possession and claim from 1868 to the time of his death in 1888.

The court erred in giving charge 11, requested by the defendants. It is true the plaintiffs showed no paper title, except as to 40 acres of the land; hut there was evidence that William H. Wood went into the possession of all the land in suit and remained on it until his death. This would give his heirs the right to recover as against those of a subsequent possession and who had no paper title or title by adverse possession. — Jackson Lumber Co. v. McCreary 148 Ala. 247, 41 South. 822; L. & N. R. R. Co. v. Philyaw, 88 Ala. 269, 6 South. 887. It was for the jury to determine whether or not the defendants’ possession was so actual, adverse, and exclusive as to establish title in themselves so as to defeat the plaintiffs’ recovery.

Charge 10, given at the defendants’ request, was bad, and should have been refused. It is true the payment of taxes upon all the land while in actual possession of a part was an evidential fact to be considered by the jury, with all the other evidence, to show claim of ownership and the extent of possession, but was not conclusive on them that defendants’ possession extended to the entire tract.

There was no error in giving the other charges requested by the defendants.

Counsel for appellees insist that this case should be affirmed, because the plaintiffs failed to make out a pri-ma facie case, and that the errors complained of could not be harmful to them. We cannot agree, as matter of law, that the plaintiffs did not show a definite, recoverable interest in the land. It is true the proof could have been more positive and definite that Wood left no descendants; but the proof at least created an inference for the jury that they were the heirs of said Wood and what their respective interest in the land was.

For the errors above designated, the judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded.

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