72 So. 24 | Ala. | 1915
The proof in this case was not sufficient to relieve Alex Lee from filing a declaration under section 1541 of the Code of 1896, in order to set up adverse possession. While he had negotiated with Hinson for the purchase of the land, the proof shows that the land was bought by Evan Lee, the reputed father of Alex, to whom a deed was made by Hinson, and that
Had Alex Lee shown a compliance with the Code of 1896, and an adverse possession thereunder, he could tack that period to an adverse possession during the period covered by the Code of 1907, and if the two existed for the requisite period his adverse possession would be established; but if he had jio adverse possession during the period covered by the Code of 1896, said period could not be tacked to the period covered by the Code of 1907, though he may have been an adverse holder for the last period. Not having an adverse possession under the Code of 1896, and not being able to tack the period covered by said Code to the possession under the Code of 1907, and the period under the Code of 1907, being less than ten years, the title of the plaintiff was not ousted by adverse possession.
The appellants also insist that Alex Lee was excepted from the statute as to the declaration, and registration of his claim or color of title, because he went into possession of, or held, the land by descent. In other words, that he was a lawful heir of Evan Lee, .the owner of the land.- It may be conceded that there was some proof tending to establish a common-law marriage between Evan Lee and the mother of Alex, a question we need not and do not decide; yet if such was the case the said Alex Lee did not hold adversely to the estate or the other heirs of said Evan Lee until the proof showed some hostile act or conduct which would overcome the legal presumption that he was holding for .the benefit of the estate or of his cotenants. The only proof to indicate
There is no merit in the claim of title through Alex Lee as to an undivided interest by inheritance from Evan Lee, independent of the claim of adverse possession, as the sale of the land by the probate court for distribution cut off the right to impeach the same, in this action, conceding that Alex was a legitimate child of Evan and was not a party to the probate proceedings.—Lyons v. Hamner, 84 Ala. 197, 4 South. 26, 5 Am. St. Rep. 363.
The trial court did not err in giving the general charge for the plaintiff, and the judgment is affirmed.
Affirmed.