104 Ala. 438 | Ala. | 1893
We have also held, more than once, that such a conveyance, acknowledged by the wife after the death of the husband, with certificate thereof in proper form, does not defeat or affect the title of his heirs. — Richardson v. Woodstock Iron Co., 90 Ala. 266 ; s. c. 94 Ala. 629; Hodges v. Winston, 95 Ala. 514.
Before that time, being the owners of the lot, with title in themselves and in the actual occupancy, it is impossible to conceive of Hart or his wife being the tenant of the defendant, who had no title. Their possession under such circumstances was not the defendant’s or that of any one else, except their own. There is no pretense that defendant was ever in the actual possession of said lot, until Teney died in 1893, when her agent went on the premises and claimed it for her, but the Harts had remained in the continuous, unbroken actual possession until both of them died. And Teney, continuing in unbroken possession, after the death of her husband, certainly held it adversely to defendant, as is evidenced by the fact, that, claiming it as her own, and in the assertion of such claim, she sold and conveyed it to plaintiff in April, 1887. If it be said, therefore, that plaintiff’s deed is void, because made by Teney, when out of possession, the contention has no basis in fact on which to stand. ‘ ‘To avoid a deed made by one out of possession, it is enough if there be one in adverse, possession, exercising acts of ownership, and claiming to be rightfully in possession. Color of title is not necessary. Pos
The defendant having failed to show adverse possession for the length of time that will support her claim against the plaintiff’s title, and the plaintiff having shown a legal title older than that of defendant, both parties claiming from the same source, it follows, her title must give way to the plaintiff’s.
The plaintiff was entitled to the general charge as requested, and the court erred in refusing to give it.
Reversed and remanded.