Marston v. Rowe, 43 Ala. 271

Marston v. Rowe

43 Ala. 271 | Ala. | 1869

B. E. SAEEOLD, J.

The court has heretofore decided, tha if the facts stated in the bill of the complainant are true, he is entitled to the relief prayed for.—Marston v. Rowe, 39 Ala. 722. The cause has since been tried on the merits, and the bill dismissed, on the ground that conceding the adverse possession of Dexter and of Collins, from 1833 to 1847, the proof fails to show an uninterrupted continuance of the possession in any one claiming under them since that time.

The view of the case, by the chancellor, makes it necessary to consider all the points of difference presented by the pleadings.

These are — 1st. The validity of the bond for titles executed by Joshua Collins to Dexter, in 1831. 2d. The character and continuance, for thirty years, of the possession of Dexter and his vendees, of the land in controversy. 3d. The ownership by the complainant, Marston, of any title derived from Dexter. 4th. The adverse possession of the defendant, Bowe, at the date of the deed from Ailing to Marston, in 1849. 5th. The validity and effect of the purchase, by the defendant, at the sheriff’s sale of the land, as the property of Joshua and his brother, Christopher Collins, in 1858.

*284The act of congress of May 29, 1830, under which the pre-emption right of Joshua Collins, sr., to this land was acquired, declares, “ That all assignments and transfers of the right of pre-emption, given by this act, prior to the issuance of the patent, shall be null and void. — U. S. Stat, at Large, vol. 4, p. 421, § 3. The patent was issued in 1833. The bond given by Joshua Collins to Dexter, in 1831, being equivalent to such assignment and transfer, is illegal and void.—McElyea v. Hayter, 2 Porter, 148. Joshua Collins died in 1832, audit is not professed that either he or hisdevisees made any new contract with Dexter,which might be sustained by the act of January 23d, 1832, supplemental to the above. Even this latter act has not been construed to apply to sales of pre-emption rights, prior to the entry at the land office.—13 Ala. 30.

The bond, though invalid, is evidence of the character of Dexter’s possession. It and the testimony of the witnesses, Lewis Wheeler and Gager, prevail over the denial of the answer, and establish the facts that Dexter was notoriously claiming title to the west half of the quarter section, before the death of Joshua Collins, sr.; that he divided it into lots, and sold them to various persons, designating the boundaries by stakes ; that his acts of ownership and claim of title were well known to the children and devisees of Joshua Collins, sr., and recognized and acquiesced in by his devisees, Christopher and Joshua Collins ; that the lot of twenty acres, now in dispute, was sold by Dexter to Darling Collins, the brother of the defendant, Rowe, in 1836, and that the said defendant was cognizant of all that was done. Such acts of ownership and occupancy, brought to the knowledge of those to be affected by them, are sufficient to constitute adverse possession, although the land was never actually lived on or enclosed.—6 Peters, 513; Marston v. Rowe, 39 Ala. 722; Brown v. Cockerell, 33 Ala. 38. The testimony further shows that Darling Collins claimed, and was in possession of, the twenty acre lot in question, and conveyed it by deed of trust, to secure the payment of certain debts to Newton St. John and others, in 1837. It is uncertain when Darling Collins died, but the proof tends most strongly to fix the *285time in 1847. His deed to St. John was not inconsistent with his continued possession during his life. The three witnesses say generally that the children of Joshua Collins, sr., including Mrs. Rowe and Christopher and Joshua, jr., knew of the claim and -the possession of Dexter and his vendees, and never sought to obtain possession of the property until about 1855, when Christopher, under the impression that the bond of his father was lost, attempted to oust Shepherd, and was evicted by action at law.

If the testimony fails to show any actual, positive possession of the land, after the death of Darling Collins, by any of those from whom the complainant claims to derive title, it does not show any abandonment by them; nor does it show any occupancy by those from whom Nancy Rowe .claims to deduce her title. It is true, the complainant must recover on the strength of his own title, but it is enough if he shows a right to recover against the defendant.—Garret et. al. v. Lyle, 27 Ala. 586. The occupation of Dexter, and of Collins, from 1833 to 1847, being shown, any person claiming title by deed from them, could, as late as 1853, have evicted one having only a possessory right, on the ground that a prior possession, under a claim of right, short of the period which creates a bar, under the statute of limitations, will prevail over a subsequent possession, when no other evidence of title appears on either side.—Smith v. Lorillard, 10 Johns. Rep. 339; McCall v. Doe ex dem. Pryor, 17 Ala. 533; Badger v. Lyon, 7 Ala. 464. Doe ex dem. Heydenfeldt v. Mitchell, 9 Ala. 70; Smoot & Nicholson v. Lecate, 1 Stew. 590.

The continued possession will be presumed, in the absence of any proof of abandonment. The proof is, that neither the defendant nor the devisees of Collins, nor any one claiming under them, had, or claimed possession before about 1855.

The sale by St. John, to Corney, in 1851, and the sale under execution against Corney to Ela, in 1852, are circumstances of notoriety, in the claim of possession, and of claim of title, by the vendors of complainant. Twenty years’ adverse possession having been completed in 1853, constructive possession, by deed, could have been, and *286was conveyed by Ela to Ailing, in 1854, and by Ailing to complainant in 1859.

The objection of the defendant, that the complainant had not the title of Darling Collins, because the grantors of the deed to Corney are hot the grantees of the deed from Collins, and because the terms and stipulations of the the trust deed were not pursued, cannot prevail. St. John testifies that those who conveyed to Corney, possessed all the interests of the grantees of the trust deed. Besides, the deed itself says the surviving grantee may execute the power of sale, and St. John was the survivor. Mrs. Rowe being a stranger to that deed, cannot be heard to complain of informalities and irregularities, in the execution of the powers conferred by it.—Herbert v. Hanrick, 16 Ala. 581; Huckabee v. Billingsley, ib. 418; Gary v. Colquitt, 11 Ala. 514; Foster v. Goree, 5 Ala. 424; Brown v. Lipscomb, 9 Por. 472.

At the time of the professed sale of this property by the sheriff, at which Mrs. Rowe became the purchaser, in 1858, Joshua and Christopher Collins had no such interest in it, as was subject to levy and sale under execution. Whatever interest they might, at an earlier day, have asserted, had then been lost by their laches. Consequently, Mrs. Rowe acquired nothing by her purchase.

The testimony disproves the assertion of her answer, that she had adverse possession of the land, sought to be recovered from her, at the execution of the deed from Ailing to complainant, in 1859, by fixing the beginning of her occupancy in 1862.

The decree of the chancellor is reversed, and the clerk of this court will enter the following decree instead thereof: It is ordered, adjudged, and decreed, that complainant, Charles A. Marston, recover of the defendants, Nancy Rowe and I homas Gleason, the possession of that portion of the west half, of the southwest quarter of section fourteen, township four, south of range two, west, of the lands subject to sale at St. Stevens, Alabama, lying in the county of Mobile, near Spring Hill, described and bounded on a map drawn by Dean Knox, surveyor, as follows, to-wit: Said parcel of land is a parallelogram rectan*287guiar, containing twenty acres, bounded on the north by Pine street, on the east by Eighth street, on the south by Jefferson street, and on the west by a line commencing at a point on the south boundary line, and equidistant from Eighth and Ninth street, to the north boundary line. Said land is the same sold by Andrew Dexter to Darling Collins, on the 20th of October, 1836, being the same parcel of land described in the said complainant’s bill of complaint. And that the register of the chancery court, for the first district of the southern chancery division at Mobile, issue to the sheriff of Mobile county a writ of habere facias possessionem in behalf of said complainant, against said defendants ; that the pretended deed to said land made by the sheriff of Mobile county to said defendant Eowe, on the first Monday of December, 1858, is declared null and void, as against the said complainant; and that the title to said land be vested in the complainant, as against the said defendants; and that the said complainant recover of the said defendants the costs of this appeal, and of the court below, for which let execution issue.