Robinson v. Allison, 124 Ala. 325

Robinson v. Allison

124 Ala. 325 | Ala. | 1899

SHARPE, J.

— The governing principles and'the main facts involved in this cayise are stated in the report of *328the same cause upon a former appeal and need not he here restated. See Robinson v. Allison, 97 Ala. 596. Upon a second appeal the question as to the sufficiency of the deed from the United States Marshal to James Robinson was considered with reference to its description of the lot sued for and particularly in respect of a defective statement of the boundary line and it was held that whatever ambiguity existed in the description was, eliminated by the uncontradicted parol proof. — Robinson v. Allison, 109 Ala. 409. An examination of the evidence had upon the last trial brings us now to a like-conclusion. The evidence' if believed establishes the identity of the lot sued for with that described in the marshal’s deed, and also in the subsequent deed from Robinson’s executor to the plaintiff, and the jury might have been so instructed since the evidence on that point is without material conflict and warrants no contrary inference.

In the first appeal, it was held in effect that under the deeds mentioned, the plaintiff acquired the title held, by Samuel H. Allison in the lot sued for, at the time of the execution sale. It is well settled however that a sale of land under execution against the husband does~not affect the right of dower. — Irvine v. Armstead, 46 Ala. 363; Wood v. Morgan, 56 Ala. 397;, Jackson v. Isbell 109 Ala. 100. And where the husband, as in this case, continues - his residence upon the premises, after such sale, the widow not having relinquished her right to dower has the game right of quarantine as' when there has been a voluntary alienation by her husband, as to which latter case'the rule is likewise well settled in favor of her right. — Inge v. Murphy, 14 Ala. 289; Shelton v. Carroll, 16 Ala. 148; Oakley v. Oakley, 30 Ala. 131. Accordingly it was heldin\ the first appeal that Mrs. Allison after her husband’s death had the right to possession of the lot in controversy until-dower was assigned, which was never done; that "finder the facts then in evidence her possession was noA, adverse to the legal title. In the opinion it is said that, “in the absence of proof that she claimed possession adversely to the owner the law presumes that she held urMer the legal title.” The correctness of that opinion do'p not appear to be now *329questioned, but appellees contend that there is evidence-in the last trial which ivas not in the first tending to show that Mrs. Allison did not claim by right of quarantine, but that her husband still claimed to owm the property after the execution sale and that after his death she claimed it as the absolute OAvner, and that such eAddence made it proper for the jury to determineAvhether possession so held and claimed was adverse to-the title derived from that sale and subsequent deeds.

Whether Samuel H. Allison’s possession was so adverse is immaterial; defendants do not and cannot claim title through him. His possession was not long enough to perfect title under the statute of limitations, and such-possession as he had was interrupted by his death and the subsequent holding of Mrs. Allison, so that it cannot be taclced to that held by defendants after her death, for adverse possession to constitute title must be continuous for at least the .statutory period of ten years. Nor can Mrs. Allison’s possession be considered a continuation of her husband’s since she did not hold through him. To enable the possession of one to be-lengthened by being joined to that of another there must be not only continuity, but privity, by descent or grant or some judicial or other proceeding. — L. & N. R. R. Co. v. Philyaw, 88 Ala. 264; Riggs v. Fuller, 54 Ala. 141; Crespin v. Hannovan, 50 Mo. 536; Hinckman v. Link, 97 Mo. 482. Though derived through the husband, the right of quarantine establishes no such privity in estate. It is not an estate in land, but a mere temporary privilege to occupy it and have its rents and profits. — Wallace v. Hull’s Heirs, 19 Ala. 367; Barber v. Williams, 74 Ala. 331; Cook v. Webb, 18 Ala. 810.

We need not state any affirmative rule as to Avhat on the part of the widow having- such right, will convert her presumptively subordinate possession into one ad-A’erse to the title. Doubtless a divestiture of her dower-right, as by a release to the heir or tenant or other act amounting to a relinquishment of dower brought to the-notice of the legal owner, Avould enable her thereafter to-set up a possession which would be so adArerse, and to-perfect and prove OAvnership thereunder according to-the usual rules. But so long as the right of quarantine *330accompanies her possession* it excludes the owner’s right to the possession and is sufficient to defeat any action he might bring therefor. ' While such is the status of the parties, no mere claim or assertion of ownership however often and openly made would start the statute of limitations to run against the owner to whom the right of entry and the cause of action lias not accrued. We think the authorities lead to this result. Allusions to the absence of such proof, made in the opinion rendered on the first appeal, should not be taken as an intimation that such proof if had would alone be evidence of ownership in Mrs. Allison.- — Foy v. Welborn, 112 Ala. 689. See Gindrat v. Western Railway of Ala., 96 Ala. 162; Pendley v. Madison, 83 Ala. 484; Lumley v. Haggerty, 110 Mich. 562; 64 Am. St. Rep. 364; Sherwood v. Baker, 105 Mo. 472, 24 Am. St. Rep. 399. Lacking the element of hostility to the legal owners, the actual possession held by Mrs. Allison at the time of the executor's conveyance to the plaintiff did not make that conveyance champertous. — Gamble v. Hamilton, (Fla.) 12 So. Rep. 229.

Under the facts in evidence the court should have determined as a question- of law that the attempted defense of adverse possession was not sustained and it Avas error in refusing each of the charges requested by the appellant, and likeAvise in refusing the motion for a new trial.

It follows that the charges given for the appellees should Imve been refused.

The judgment will be reversed and the cause remanded.