Lucas v. Daniels

34 Ala. 188 | Ala. | 1859

A. J. WALKER, C. J.

In this case no bond or affidavit was made by the plaintiff, for the purpose of obtaining possession of the property sued for. Tile property was left undisturbed in the possession of the defendant. In such a ease, that the jury should, in a verdict for the defendant, assess the value of the property, would be useless ; and it would have been improper for the court to have given judgment for the defendant, against the plaintiff, for the property, or its alternate value, with damages for the detention. Section 2194 of the Code is manifestly inapplicable to such a case.

[2.] Although the plaintiff, by adverse possession antecedent to the deed from Livingston Gardner to Edwards, had acquired a right to the slaves in controversy; yet it was competent for him to surrender that title to the true owner, without writing; and the fact of his consenting to a conveyance of such slave by the true owner to another, was evidence strongly conducing to show a surrender of the title by proscription, if any such bad accrued to him. It was a question for the jury to determine, whether a surrender of the title by prescription was made; and, in the determination of that question, the evidence conducing to show a consent by the plaintiff to a conveyance by the original owner, was a matter proper for their consideration. If the court had charged the jury, that the plaintiff’s consent to the conveyance by the true owner would not divest a title acquired by the statute of limitations, it would have taken from the jury the power of determining the effect of such consent, as evidence conducing to show a surrender of the title by prescription. Such a charge would certainly have invaded the province of the jury, by impressing them with the idea, that they could not, upon the evidence, find that the plaintiff had surrendered whatever title he might have acquired by adverse possession.

[3.] There was evidence in this case conducing to show that the plaintiff held the slaves in subordination to the title of the trustee in the deed of Livingston Gardner j that the slaves were left by the trustee with the plaintiff, for the benefit of his children; and that while holding them in subordination to the trustee, and for the benefit of his children, the plaintiff carried them to Mississippi, with the tacit consent of the trustee, who remained and continued to reside in Alabama. The second charge, which the court refused to give, was properly x-efused, unless it is a tenable proposition, that after the plaintiff had so held the slaves up to the time of his going to Mississippi, and after his carrying the slaves to Mississippi under the circumstances above stated, a possession by him for the period prescribed in the statute of limitations of that State, under an open, notorious and public claim of title, would vest the plaintiff with the right to the slaves-The principle asserted by this court in Harrison v. Pool, 16 Ala. 174, and Benje v. Creagh, 21 Ala. 156, is at war with that proposition. It is settled by those decisions, that when possession is acquired and held for a time, in subordination to the title of the true owner, then, to constitute an adverse possession, “there must be a disclaimer of the original title, and an actual hostile possession, of which the true owner had notice, or which is so ostensible and notorious as to furnish a reasonable or prima-facie presumption of notice.” The .whole doctrine of adverse possession rests upon the presumed acquiescence of the party against whom it is held, and there can be no acquiescence without knowledge. — Cockrell v. Brown, 33 Ala. 38. If the trustee remained and continued to reside in Alabama, while the plaintiff carried the slaves to Mississippi; and the plaintiff, up to the time of carrying them to Mississippi, acknowledged the title of the trustee, it would be incumbent upon him to show that the true owner had actual notice of hishostilé possession, or that the hostility of his possession was'so ostensible and notorious as to afford reasonable or prima-facie presumption of notice. In determining whether or not the notoriety of adverse possession was such as to afford prima-facie evidence that it was known to the owner, it would be indispensable to consider the distance of the owner from the place at which such adverse possession was set up, and the fact that it was in another State. If there was a hostile possession in Mississippi, it would be manifestly wrong for the court to presume that it rvas known to the trustee remaining in the State of Alabama, no matter how public the hostility of the possession may have been in that State. The plaintiff' had no right to have the court assert, as a legal proposition, that the possession under the circumstances stated in the charge would vest him with the title.

[4.] By virtue of the trust deed, the use and the right to the beneficial enjoyment of the property embraced in the deed was in the children of Mrs. Lucas after her death. Leaving 'out of view the question of the effect of the appointment of defendant’s intestate by Edwards, if Daniels was the husband of one of the beneficiaries, for whom the property was held in trust, and had possession in right of his wife, he would be so connected with the title of the trustee, that he, or his-representative in the event of his death pending the suit, might set it up in defense of his possession. The fact that the possession was obtained by stealth or violence, from a wrougful possessor, would not destroy the right to set up such title. The court, therefore, did not err in its refusal to give the last charge asked by the appellant.

The judgment of the court below is affirmed.