Roe v. Doe ex dem. Rowe, 48 So. 1033

48 So. 1033 | Ala. | 1909

Lead Opinion

ANDERSON, J.

The defendant did not question the plaintiff’s paper title to the north half of the section, or that the strip of land in controversy was in said north half, but relied solely upon actual adverse possession of said strip in herself and those under whom she holds for over 50 years. The plaintiff testified that her father was in the possession of the place; but she knew nothing about the location of the fence, and did not show a possession of the strip south of the fence. On the other hand, her witness Wesley Johnson testified that her possession was only to the fence, and that the defendant’s hands cultivated the strip in question. The defendant proved by many witnesses that Col. Chappell maintained the fence 52 years ago, and was in possession of said land and claiming up to the fence; that Russell went into possession under Chappell, and claimed and cultivated up to the fence; and that the defendant has done the same ever since the land was purchased from Russell. The defendant, therefore, acquired title by adverse possession. It matters not that she filed no declaration of her claim to the land, under section 1541 of the Code of 1896, as that statute only became effective in 1893, and her predecessors’ possession had already ripened into title, and she went into possession under them by a contract of purchase. Moreover, if she purchased the land and was put in possession under a bona fide contract of purchase, she did not have to file a declaration in the probate office in order to hold adversely.— Holt v. Adams, 121 Ala. 664, 25 South. 716; Sledge v. Singly, 139 Ala. 346, 37 South. 98.

The trial court erred in not giving the general charge requested by the defendant. The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and McClellan and Mayfield, JJ., concur.

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Rehearing

On Rehearing.

ANDERSON, J.

It is insisted by appellee’s counsel that the plaintiff’s title to the land, under the will of her father, Fannin, was subject to the life estate of her mother, and that- the statute did not run against her until the death of her mother, the life tenant (a point not made in the original brief.) This rule would obtain if the possession of the defendant and her grantors started after the creation of the plaintiff’s remainder or held under the life tenant; but in the case at bar the possession started before Fannin, the father, and husband of the life tenant, acquired the land, and the statute of limitations was and had been running for years before her death, and before the creation of the plaintiff’s estate in remainder. It is settled law that after the statute begins to run no subsequent disability supersedes its operation, unless by statutory provision.— Baker v. Barclift, 76 Ala. 417; Black v. Pratt Coal Co., 85 Ala. 508, 5 South. 89; section 4860 of the Code of 1907. The statute, having started and run for years before the plaintiff’s estate came into existence, was not intercepted because, by the terms of her father’s will, her mother took a life estate in the land, and she was not entitled to same until her mother’s death.

In the case of Gindrat v. Western R. R., 96 Ala. 162, 11 South. 372, 19 L. R. A. 839, the defendant never went into possession of the land until after the execution and recording of the deed creating the remainder.