Ray v. Farrow

100 So. 868 | Ala. | 1924

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The action is under the statute, and is in the nature of ejectment. The general affirmative charge, with hypothesis, was given at defendant's request, in writing.

It is contended that the husband of the doweress and father of plaintiffs, Ransom G. Ray, had the possession of the lands sued for under claim of ownership from 1857 to the time of his death during the Civil War; that he went to the war and "never came back from the army"; that his wife and children were in the enjoyment of or in possession of the home and said land from the time said Ray went to the war and to the time the same was set apart to the widow as dower in 1867.

The declarations of ownership by Mr. Ray while in possession of the land as to the nature, character, and extent of his holding were properly admitted in evidence. Smith v. Bachus,195 Ala. 8, 70 So. 261. There was error in excluding the proposed testimony of the witness A. J. Ray that his mother in possession claimed the land as set apart to her as dower.

The petition and proceedings thereon to the decree in 1867, setting apart dower to said Ray's widow, were offered in evidence and rejected on defendant's objection, and exceptions were duly reserved. These documents, if considered with the other evidence, tended (1) to identify the dower lands that are embraced in this suit; (2) to illustrate the nature and character of the possession of Mrs. Mary Jennings, nee Ray; and (3) the character of the title and possession of her successors in interest or estate from the common source during the life of the said widow of Mr. Ray.

The rule declared in Pickett v. Doe ex dem. Pope, 74 Ala. 122, has been adhered to by this court. It is:

"The principle decided in the case of Broome v. King, 10 Ala. 819, and followed in several other cases (Price v. Talley's Adm'rs, 18 Ala. 21; Walker v. Fenner, 28 Ala. 367; Thrasher v. Ingram, 32 Ala. 645), as to the effect of a sale of the entire property by a tenant for life on the estate and rights of a vested remainderman, applies only to personal property, and the court declines to extend it to cases involving real property.

"The possession of land by a tenant for life cannot be adverse to the remainderman; and if he sells and conveys to a third person, by words purporting to pass the absolute property, the possession of the purchaser is not, and cannot be during the continuance of the life estate, adverse to the remainderman." Woodstock Iron Co. v. Fullenwider, 87 Ala. 584,6 So. 197, 13 Am. St. Rep. 73; Kerr v. Nicholas, 88 Ala. 346,6 So. 698; Gafford v. Strauss, 89 Ala. 283, 7 So. 248, 7 L.R.A. 568, 18 Am. St. Rep. 111; Gindrat v. Western Ry. of Ala., 96 Ala. 162, 11 So. 372, 19 L.R.A. 839; Bolen v. Hoven, 143 Ala. 652, 39 So. 379; Mitchell v. Baldwin,154 Ala. 346, 45 So. 715; Lecroix v. Malone, 157 Ala. 434,47 So. 725; Hall v. Condon, 164 Ala. 393, 51 So. 20; Winters v. Powell, 180 Ala. 425, 61 So. 96; Seaboard Air L. Ry. v. Banks, 207 Ala. 194, 92 So. 117; Harrison v. Sollie,206 Ala. 284, 89 So. 562; Graham v. Graham, 205 Ala. 644,89 So. 25; Kidd v. Browne, 200 Ala. 299, 76 So. 65; Dallas Compress Co. v. Smith, 190 Ala. 423, 436, 67 So. 289; Reynolds v. Trawick, 201 Ala. 449, 87 So. 335.

The father and husband, in possession of the land in question under claim of title, or by exercising acts of ownership through himself or tenants, is presumed to have had title thereto before and at the time he went to the Civil War; and proof of that possession and claim of ownership while in possession makes out a prima facie right in his heirs at law, after the termination of the life estate, as against one who shows no title in himself or superior outstanding title in a third person — notwithstanding such a one may have color of title. Hornsby v. Tucker, 180 Ala. 418, 424, 61 So. 928; Dodge v. Irvington Land Co., 158 Ala. 95, 48 So. 383, 22 L.R.A. (N.S.) 1100; Higdon v. Kennemer, 120 Ala. 193, 24 So. 439; Doe, ex dem. Miller et al. v. Clayton, 73 Ala. 359; Brewer v. Avinger, 208 Ala. 411, 94 So. 590; West v. Chandler,201 Ala. 260, 77 So. 674.

If Ransom G. Ray was beneficially seized of the land in possession during the coverture of the said Mary, he was prima facie seized in fee, and, unless this is impeached, or sufficiently explained as not being the fact, he is presumed to have had title to which the right of dower attached. Code 1907, § 3812; Tilley v. Letcher, 203 Ala. 277, 82 So. 527; Dodge v. Irvington Land Co., 158 Ala. 95, 48 So. 383; Steele v. Brown, 70 Ala. 235; King v. King, 61 Ala. 479; Glover v. Mitchell, 99 So. 905.¹ And the mere possession of the wife during the absence of the husband to the end of the Civil War or to his death, and thereafter to the assignment of dower, and her possession as doweress, and thereafter that of her successors in estate, will be tacked under the law; that is, the whole inures to the benefit of the remaindermen, who are plaintiffs in the instant suit. It follows that, if the combined possession (of the nature indicated) was for the period of ten years or more, and was of the nature required to ripen into adverse possession, it may support the title and claim of the remaindermen. They may rest a suit in ejectment on expiration of the life estate. Reynolds v. Trawick, 201 Ala. 448,450, 78 So. 827. For possession that is adverse see Alabama authorities collected in 2 C. J. p. 51, § 2.

It may not be necessary to further speak of the tacking possession. However, in Haynes v. Boardman, 119 Mass. 414, 415, the court said of the privity in estate and the tacking possession of the life tenant for the remainderman:

"It is claimed that there is no such privity between the life tenant and the remainderman, because the latter in no sense claims under the former. But the answer is that both claim under the same will by one title. The disseisin, which was commenced by the testatrix, is continued by each in accordance with that title, and is referred by each only to the entry of the testatrix. There has been no loss of possession; no restoration of the seisin to the true owner; no new entry. The disseisin which commenced with the testatrix has been continuous in her devisees, and establishes her title by lapse of time. It is plainly distinguished from a case of successive entries and new disseisins by different and independent parties. It does not follow, because no act of the life tenant in disparagement of his title, and no disseisin of him, will be permitted to injure the remainderman, that an adverse possession maintained by the tenant, under his title, will not inure to the benefit of the former. The test of title is that there has been no interruption of possession, and no new entry required."

In Hickman v. Link, 97 Mo. 480, 10 S.W. 600, it is held that the widow is entitled to quarantine in the lands of the husband until the dower is assigned, and such possession by her as doweress will not be adverse to the heirs (see Yarbrough v. Yarbrough, 200 Ala. 184, 75 So. 932), that this right to retain possession until dower is assigned is the reason for the holding that the possession of the heirs may be tacked to that of the wife or widow, to constitute the period of the statute of limitation. 2 C. J. p. 89, § 83; Mills' Heirs v. Bodley, 4 T. B. Mon. (Ky.) 248; Atwell v. Shook, 133 N.C. 387,45 S.E. 777.

It may be well to advert to the refusal to admit in evidence the record in the probate office (filed in office April 4, 1861) of the deed from James Boulware and wife to Ransom G. Ray, of date February 4, 1861. It is the rule in this jurisdiction that deeds made or land certificates issued more than 30 years before the trial, in the absence of circumstances to create suspicion, are ancient and self-proving documents, and it is not necessary that they should come from the proper source or even be exhibited to the court for inspection as to genuineness or age. McMillan v. Aiken, 205 Ala. 35, 42 (13),88 So. 135; Jordan v. McClure Lbr. Co., 170 Ala. 289, 313,54 So. 415. Where plaintiffs in ejectment were not the grantees under a deed which was nearly 50 years old, no presumption arose that they were in the possession or control thereof, and hence were entitled to introduce a certified transcript of the record to prove the deed. Wise v. Spears, 172 Ala. 8, 55 So. 114; Allison v. Little, 85 Ala. 512, 516, 5 So. 221.

The record offered shows that said deed was more than 60 years of age, and had been of record in the office of the judge of probate for more than that period. Such a deed is an ancient document within the rule, and the record of the same is admissible in evidence. McMillan v. Aiken, supra.

In Jordan v. McClure Lbr. Co., supra, it is said:

"In fact, this court has held that certified copies of documents which purport to be over thirty years of age and which have been recorded for twenty years are self proving. * * * These cases have been modified by the later case of O'Neal v. T. C. I. R. R. Co., 140 Ala. 378, 37 So. 275; but not as to the proposition announced above. That case merely decides correctly that age cannot give validity to a document void on its face." Prince v. Prince, 188 Ala. 559, 66 So. 27. Messer-Johnson Realty Co. v. Security Savings Loan Co.,208 Ala. 541, 94 So. 734.

The plaintiffs had the right to introduce in evidence the title from Mrs. Ray to Craddock, his mortgage to American Freehold Land Mortgage Company, evidence of the foreclosure and purchase by Joe Davis, the grantor of the defendant, as tending to show that the parties held from a common source and the extent and nature of the title and possession.

The witness Stanford should have been permitted to answer the question, "Who went into the possession after Mrs. Ray?" It was relevant evidence tending to explain the nature or character of defendant's title and possession before and to the time of the death of the said widow.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.

¹ Ante, p. 136.