144 Ala. 524 | Ala. | 1905
The plaintiff established a complete chain of title to the land and the defendant set up adverse possession to all the land involved, except, the por tion as to which he disclaimed, and the burden of proof
There was evidence on the part of the plaintiff that the defendant stated, but a short while before the suit was brought, that he claimed only forty acres in section nine, and which was not embraced in this suit. This alone was sufficient to make it a question for the jury as to whether or not the defendant’s possession was hostile, in view of the fact that he denied having made the statement, even if all of the other elements of adverse possession were established, but which we do' not mean to concede. The general affirmative charge was properly refused.
Of course there are instances where the actual possession of a part of the land will be extended by color of title, to the whole tract described in the color of title, in the absence of any actual possession of any part of the tract by the true owner, and, in fact, such seems to be the general rule. There are exceptions, however, and instances where the actual possession of a part does not necessarily extend the adverse possession to the whole tract as against the true owner who is not in the actual possession of any of it. It depending to a great 'extent upon the quality and character of the land, the nature and character of the possession and the purpose for which the entry was made. The rule seems to have no application where a person takes and maintains a few acres of land in an uncultivated township, for the mere purpose of thereby gaining title to the entire township by an extension of his actual possession under1 his color of title to the exclusion of the rightful owner. Chandler v. Spear, 22 Vt. 388. Nor does the doctrine of
“And it has been held that in order that that part of the land which is not actually possessed may be deemed constructively so, it must be for use with or subservient to the part of which the complainant has actual posses-' tion; in other words, constructive possession will extend only to such land as is used in connection ^ith the land actually possessed, and to only so much as is reasonable and proper for the purpose according to the custom of the country. But the actual occupancy of only a part of a tract under color of title will give constructive possession of the remainder if it. is, according to the custom of the country, naturally subservient to and used in connection with the part actually occupied.” — 1 Am. & Eng Ency. Law (2nd ed.), 864.
In the case at bar it seems necessary for ns to determine whether the possession of the few acres in the overlap extended the defendánt’s possession to. all of the land described in the deed from Norwood, as there was evidence disputing the claim of adverse possession to all of the land including the overlap; so too, the defendant proved acts of possession upon the land outside of the overlap, and we discuss the rule and exception therefrom in order' that we may not create the impression that the actual possession of a small overlap under all conditions would necessarily extend the possession to all land described in the color of title.
“The doctrine of adverse possession rests‘upon the presumed acquiescence of the party against whom it is held, and such acquiescence again presumes knowledge. All the law requires, therefore, is Ithat the possession, or rather the acts of dominion by which it is sought to be proved, shall be of such a character as may be reasonably expected to inform the true owner of the fact of possession and adverse claim of title.” — Foulke v. Bond, 41 N. J. Law, 547; Farley v. Smith, 39 Ala. 44. It is sufficient if such owner has either knowledge or notice of such fact of possession and claim, which, as said by
Charges 1 and 3 given at the request of the plaintiff did not go beyond the rule heretofore declared as to the notoriety of the possession and the acquiescence of the owner, and the trial court committed no error in giving them.
Charge 2 was faulty and the court erred in not refusing it. It required# too high a degTee of proof; it required the defendant to satisfy the jury and it was only necessary to reasonably satisfy the jury. — Torrey v. Burney, 113 Ala. 497; Prince v. State, 100 Ala. 146; Eastis v. Montgomery, 93 Ala. 293. It also requires that the possessory acts must have been such as “compelled” the plaintiff to know o‘f the adverse claim, unless it or its agents willfully closed their eyes to the fact. While the rule is that such acts are sufficient, if such owner has either knowledge or notice of such facts of possession and claim; not merely express notice, but knowledge or the means of knowledge to- which the party shuts his eyes. Prom reading the charge the jury might infer, that, even if the possessory acts were sufficient, the plaintiff would not be bound thereby, unless said acts compelled it to know of 'the adverse claim unless its agents shut their eyes thereto. The acts may have1 been sufficient, yet insufficient to compel the plaintiff to know of the adverse claim under all conditions. The charge' was at least misleading, and confusing and the jury might have inferred therefrom that acts of possession were not binding on the plaintiff, unless it had an opportunity to know and failed to know by closing its eyes. The acts of possession may have gone on, the plaintiff may not have closed its eyes, yet have so conducted itself by neglecting to go upon the land as to not be compelled to know of the adverse claim.
It is needless to consider the action of the court in excluding the statement of Crider, “It was his information that Norwood claimed the land which he attempted to- convey to the defendant by said deed,” as he subse
While declarations of ownership by a party in possession can be shown in establishing adverse possession, we do not think the rule includes acts of parties who were never in possession, and the objection to the question to witness, Dailey, “Did Norwood try to sell the land to anyone else?”, Avas properly sustained.
The action of the trial court in sustaining the plaintiff’s objection to the question to the defendant, “Why did you not pay the taxes on the land?”, was proper. A Avitness cannot testify as to his uncommunicated motive or reason. — Dent v. State, 105 Ala. 14; Ball v. Fairley, 81 Ala. 288.
The disclaimer related to only a small portion of the land and we do not see hoAV it affected the amount of cost. The plaintiff recovered a judgment as to most of the land sued for, which carried the cost, and there Avas no error in rendering judgment against the defendant for all the cost. — Buxbaum v. McCorley, 99 Ala. 537.
For the error heretofore pointed out, the judgment of the county court is reversed and the cause remanded.