Lee v. Thompson

99 Ala. 95 | Ala. | 1892

THOB.INGTON, J.

In the case of Vandiveer v. Stickney, 75 Ala. 225, re-affirming Collins v. Johnson, 57 Ala. 304, it was decided by this court that an uninterrupted, continuous possession of lands by a donee, under a mere parol gift, accompanied with a claim of right, is an adverse holding as against the donor, and will be protected by the statute of limitations, thus maturing into a good title by the lapse of ten years; that the fact is immaterial that such a parol gift of lands conveys no title, and only operates as a mere tenancy at will, capable of revocation or disaffirmance by the donor at any time before the bar of the statute is complete. And that it is evidence of the beginning of an adverse possession by the donee, which can be repelled only by showing a subsequent recognition of the superiority of the title of the donor. And in 1 Amer. & Eng. Encyc. of Law, at page 280, the same doctrine is declared and supported by the citation of many decisions.

In the case at bar, appellee, who was the defendant in the court below, went into the possession of the land sued for by appellant, more than twenty years before the commencement of the suit, under a parol gift from her father, and the statement in the bill of exceptions is that “she, defendant, was in possession of the lands sued for in the year 1864, that she had occupied it continuously as her own, claiming it adversely to all persons publicly and openly and exercising acts of ownership over it until the present time;” and also, “that while she was in possession she cleared, cultivated and fenced a part of it, about fifteen acres, and she used the rest of it in getting rails • and fire wood therefrom, and for other purposes when she saw fit.” It also appears from the bill of exceptions that, soon after appellee so entered into possession of the lands, her father repeatedly said to lifer, and to others in her presence, that “he had given the lands to her as her own because her husband was killed in the war, and it would aid her in raising her orphan children.”

Undoubtedly these statements of the evidence, in the bill of exceptions, show an adverse holding of the lands by appellee from the commencement of her possession, and with the knowledge of her father, and which continued a sufficient length of time to ripen into title, and there is nothing in the testimony which overcomes this proof. Whether her father had title to the property or not at the time of the parol gift it is immaterial to inquire. Appellee’s right and title do not spring from the parol gift, but from her adverse possession and claim of ownership continued for a period of ten years.

The case of Burrus v. Meadors, 90 Ala. 140, and Potts v. Coleman, 67 Ala. 221, are distinguishable from the case at bar. In both of these cases the son entered on the land in recognition of, and in subordination to, the title of his father. In the case first mentioned, the son simply went into possession of the land with the consent of the father, the latter continuing to claim the land; and in the last mentioned case it is said in the opinion of the court: “It is manifest from the evidence that the son never intended the assertion of a title hostile to that of the father.” While in the case at bar it is clear appellee’s possession was hostile to her father’s from its inception, and so openly and notoriously such, that the father must have known it; or such as to give rise to the presumption that he knew it.

It is urged by appellant that before the adverse possession of appellee ripened into title there was a recognition by appellee of her father’s title, or an implied recognition on her part that the lands belonged to his estate. That contention is based on the testimony for appellant showing that the administrator of Frank John’s estate rented the land one year to Alfred Faulk, and also that appellee, on one occasion, when the administrator was about to sell the lands under a chancery decree as part .of the estate of said Frank John, requested the administrator to permit her to remove a fence she had placed'on the land, and also that when the lands were so sold by the administrator, appellee bid on the land in controversy with the intention of purchasing the same. Appellee’s testimony showed that, when the land was so rented to Faulk and he demanded possession, she refused to surrender and told Faulk the land belonged to her; that she had been holding and claiming it adversely for twenty years; and she further denies in her testimony that she requested permission from the administrator to remove the rails. These were questions for the jury, and they decided the issues in her favor. In explanation of her bidding on the land, it is shown by her testimony that she so bid after having publicly given notice at the sale of her claim to the property, and after having forbidden the sale, and under the advice of her attorney, that if she could buy the land at $1.25 per acre, it would be better than to have a suit. Whether this would have been such a recognition of title in another as to interrupt the continuity of her adverse holding we need not decide.

It nowhere appears from the bill of exceptions that any of the facts above stated, as relied on by appellant to defeat the claim of adverse possession, occurred before the expiration of the period necessary to complete appellee’s title. If her adverse possession continued for ten years, before any of the acts above referred to occurred, neither nor all of them could operate to divest her title so acquired. The title once acquiredby adverse possession, it was as effectual and indefeasible as if it had been created by a valid conveyance, and could only be divested by some mode recognized by the law as sufficient for that purpose; it could not be done by parol in the manner indicated by this testimony. It the acts so relied on by appellant occurred before appellee’s adverse holding had ripened into title, it was incumbent on appellant to show it. She has failed to do so, and consequently her case can receive no support therefrom.

A further reason urged against appellee’s title by adverse possession is, that the land here sued for was soíd a’s part of her father’s estate under a decree of the Chancery Court in a cause to which she was a party, and was purchased at such sale by the plaintiff.

As these facts are set forth in the bill of exceptions, it is manifest the appellee is concluded by the chancery decree, she having been a party to the suit in which it was rendered ; and. it follows that charges two, three, five and six given at her instance should have been refused. They each rest her right to a verdict upon her adverse possession alone, ignoring entirely the proof and effect of the chancery decree to which we have above referred. The charge asked by the plaintiff is opposed to the principles we have announced and there was, therefore, no error in its refusal.

For the error in giving the several charges requested by the defendant, the judgment- of the Circuit Court must be reversed and the cause remanded.