49 So. 377 | Ala. | 1909
The bill in this case was filed by the appellee, against the appellant, to quiet title under the statute, — Code of 1896, § 809 et seq.
The respondent offers no muniments of title, but bases its claim upon the facts that its railroad was built in 1853, and that, in 1871, complainant’s intestate signed the paper which will be further alluded to hereafter.
Our decisions are clear to the point that, in this statutory proceeding, the complainant, who shows that he is in peaceable possession, makes out a prima facie case, and the burden rests on the respondent to show that he has some right, title or interest in the land.
It is claimed by the respondent that the evidence shows that it was in the adverse possession of the property in question, for eighteen years before the instrument was signed in 1871, which necessarily gave it the title. The trouble about this contention is, that the evidence does not show anything about the possession of this particular piece of land, during that time, but only that the road was built then. No condemnation, purchase, or use, of this land is shown, nor is it even shown that any particular width of right of way, which it could acquire, was fixed by its charter.
Under these facts, we cannot presume that respondent was in the adverse possession of this land during those years.
The principal contention of the respondent is that the instrument of writing, before mentioned, operated as an estoppel, preventing the complainant from disputing the title of the respondent.
The substance of said paper is that, in consideration •of the conveyance by complainant’s intestate of a half-Interest in a spring, the respondent “agree and does * "* * permit the said Anderson to use and occupy the
No recital is made as to what right, title or interest respondent has in said land, and it is not shown that complainant’s intestate went into possession of the land under said agreement. On the contrary, the paper shows that he did not go into possession at that time, but was already in possession and had built a hotel thereon at some previous time, to-wit, in 1871.
Estoppels must be certain, and “a recital in a contract that does not amount to a precise affirmation of a fact will not estop the party to deny the fact.” — 16 Cyc. 721; Calkins v. Copley, 13 N. W. 904; O’Brien et al. v. Findeison, 50 N. W. 1035.
A person who is in possession of land may purchase any outstanding claim, however ill-founded. Hence, the estoppel against a vendee, to deny the title of his vendor, does not apply where the vendee was already in possession of the land, claiming it as his own. — Greene v. Couse, (127 N. Y. 386), 24 Am. St. 458; 2 Herman on Estoppel & Res Judicata, § 887, p. 1010; 29 Am. & Eng. Ency. Law (2nd Ed.), p. 707; Blight’s Lessee et al. v. Rochester, 7 Wheaton 535, 550.
Under these principles of law, we hold that the respondent has not sustained the burden which rested upon it.
The decree of the court is affirmed.
