48 So. 1033 | Ala. | 1909
Lead Opinion
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 Rus
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.
Rehearing
On Rehearing.
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 super
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.