73 So. 542 | Ala. | 1916
Lead Opinion
Statutory action in the nature of ejectment by appellant against appellees for the recovery of the east half of the southwest quarter of the southeast quarter of section 12, township 18 south, range 4 west of the Huntsville Meridian. By disclaimers and pleas, the controversy between plaintiff and the several defendants was limited in the case of each defendant to certain lots they' had purchased from the Monte Sano Company according to a plat or map of an inclusive 100-acre tract, showing a division of the entire tract into several hundred lots. The Monte Sano Company had purchased the inclusive tract in the summer of 1902, and the evidence went to show that about the same time it had caused the property to be surveyed and laid off into streets, avenues, blocks, and lots, as shown by the map, the streets and avenues running entirely across the property; that each street, avenue, block, and lot was marked by stobs, signs,
Defendants had the general charge, and verdict and judgment accordingly, in the court below; and the main question presented by the record is whether the evidence showed without conflict or reasonable adverse inference that the Monte Sano Company held continuous adverse possession during the period from 1902 down to the .purchase of their respective lots by defendants so that, by tacking the two possessions, defendants made out a title by adverse possession for the statutory period of ten years. We state the question in this form for the reason that this in our judgment is the statement of the case most favorable to the trial court’s conclusion that as matter of law on the uncontradicted evidence, if accepted by the jury, defendants were entitled to prevail. Plaintiff claimed, of course, a present possessory interest in the land, and could not maintain her action on proof of any
The direction referred to was expressed in this language: “I wish my executor to sell my real estate, either together or in such divisions and subdivisions as will be likely to command the greatest prices and divide the money arising from such sale among the children.”
Plaintiff then introduced the record of the probate court showing that the widow had dissented from the will, and that, in lieu of the provisions made for her by the will, dower had been assigned to her. This assignment included 80 acres of the 100-acre tract claimed by the Monte Sano Company, but not the 20-acre tract described in the complaint which is contiguous to it on the west. It appeared in the course of the trial that Laird, plaintiff’s father, died in 1876, leaving a widow and 12 children, some of whom, plaintiff among them, were minors at that time. Two years later the widow married one Tulley. In the meantime the will had been probated and dower assigned. The executor named in the will appears to have entered upon the execution of his trust, but did nothing of any consequence here. In 1877, M. M. Gwin was acting as administrator de bonis non with the will annexed. His authority is not denied. On March 3, 1881, Gwin’s account as upon a final settlement was passed and allowed in the probate court. Upon these facts, some of them drawn from the evidence offered by defendants, plaintiff’s prima facie case has not been denied; the theory being, as we infer, that, since the land was not devised as land to testator’s children, the title, after the widow’s dissent, descended to his heirs and has remained in them subject only to the dower assigned and to interception by a personal representative for the purpose of paying debts or for distribution as personalty under the will. We con
(1-3) Defendants (appellees) seek to justify the general charge in the court below on several grounds. For one, they say that any interest plaintiff may have had in the land has been divested by the adverse possession of themselves and those under whom they claim for a period of ten consecutive years or more. That defendants have been in possession, holding adversely, since they improved and occupied their several lots, there can be no question; nor can it be doubted that the Monte Sano Company was in possession in the summer of 1902. The things they did then were quite demonstrative as acts of ownership. But the interval of four or five years is not at all so accounted for as to show conclusively and as matter of law notice to plaintiff, though she was all the while cognizant of the condition of the property, that the Monte Sano Company was still in possession under an adverse claim of ownership. Scott’s possession of a lot can avail defendants nothing. He derived his title from the company, but he held for himself. He was not a tenant holding for his vendor, but as owner holding in his own right. His possession had no effect upon the remainder of the property to which he laid no claim. ' On the evidence, the substance of which has been stated so far as it bore upon the possession claimed by the company, the question of plaintiff’s title was not properly withdrawn from the jury by the general charge given at the request of defendants.—Elyton Land Co. v. Denny, 108 Ala. 553, and cases cited on page 562, 18 South. 561. Continuity is as essential as any other element of adverse possession. Indeed, “the continuity of the adverse possession is the very essence of the doctrine and policy of the statutes of limitation,” for “whenever a party quits the possession the seisin of the true- owner is restored, and a subsequent wrongful entry constitutes a new disseisin.”—Henry v. Brown, 143 Ala. 446, 39 South. 325. It is familiar doctrine, too, that, while the fact that at times there may be no actual possession does not necessarily destroy continuity, the inference of continuity must be rested upon proof of acts of possession naturally indicating continuity of claim (Hollingsworth v. Walker, 98 Ala. 543, 13 South. 6), considered in connection with the lapse of time allowed to intervene between successive acts (Farley v. Smith, 39 Ala. 38), and is generally a question for the jury. The question debatable in this case was whether, during the four or
(4-6) Nor was adverse possession for any continuous period of ten years shown prior to the purchase by the Monte Sano Company, the cutting of timber on some rare occasions during that antecedent time by the company’s predecessors (other than Tulley) in the chain of paper title under which they claimed being wholly insufficient for that purpose. This chain of title led back to Gwin, the administrator, and had its beginning in a deed executed by Gwin to Tulley, widow Laird’s second husband, of date July 25, 1878. That this deed, the original of which we have before us, had suffered material alterations from its original draft is clear. Without the alterations it had no relation to the property described in the complaint; and with them its effect in facie was uncertain, since, purporting to convey lands in section 12 along with lands in section 7, it described the body of lands as lying in ranges 3 and 4. But this uncertainty was, we think made sufficiently certain by evidence from other sources. However the evidence as to whether this deed had been changed before or after delivery was in conflict and this made the question of its effect upon the title conceding for the moment that the title then rested in the grantor a question for the jury; the deed and the evidence touching its condition at the time of delivery having been properly admitted. But in fact Gwin had no title. He had no deed, and had never been in possession except as administrator, and that for a short time only. In February, 1880, Tulley, at a sale made in pursuance of a decree of the chancery court, became the purchaser of the reversion in that part of the Laird lands which had been assigned to the widow as dower, and he and his wife continued to live in the Laird home
(7) The record of the chancery proceeding was erroneously admitted in evidence. The bill in that case sought to enforce a vendor’s lien against a part of the body of lands of which Laird died seised and possessed, including the land described in the complaint in this action; but the sale of the reversion in the dower lands, which, as we have pointed out, did not include the land in suit, produced enough to satisfy the lien, that interest being first offered as the- decree directed. It resulted that the decree and its execution by sale had no effect upon the title of the land here in suit. Whether the error in admitting this record would have - called for a reversal, had the issues been submitted to the jury, we need not say. It is enough to say, on the record pre-' sentéd, that the question whether Tulley’s acts of dominion over the 20-acre tract during the interval last above mentioned was to be aided by his residence on the adjoining dower lands under
(8) We see no reason- for doubting the good faith of the color of title acquired by De Bardeleben and transmitted through mesne conveyances to the Monte Sano Company. The deeds under which they claimed, so far as they purported to convey the land in suit, were, however, nothing more than color of title, and as color availed defendants nothing, for it is clear, under the evidence and the doctrine of the cases which permit the divestiture of an outstanding title by the colorable extension of an actual continuous holding, that none of the company’s predecessors ever for any continuous period of ten years had any such possession of the dower lands they had purchased-as would have divested plaintiff of her title, if extended by color to the land in suit. On the foregoing view of the case defendants were not entitled to the general charge.
(9) There was also reversible error in allowing plaintiff’s brother and sister to testify that they laid no claims to any interest in the property. Their renunciation of title, upon whatever implied estimate of the right of the case or other undisclosed consideration based, was in no sense binding upon plaintiff, and testimony as to it might have proved highly prejudicial to her cause had it been submitted to the jury for their decision as upon a disputed issue of fact. ■
(10) Defendants seek further to sustain the action of the court in giving the general charge by reference to the doctrine of prescription. This theory of the case is rested upon an asserted equity in Gwin, through whom defendants claim as has appeared above, and upon the asserted adverse possession by defendants and their predecessors in title to which we have already referred. In aid of this theory, certain -proceedings in the probate court were offered in evidence. The record of those proceedings, as for any effect they had upon the title to the land in question, is fatally defective. Gwin, the administrator, petitioned the court to order a sale of the lands of decedent Laird, other than the part assigned to the widow as dower, for the payment of the debts of deceased. A sale was ordered.- The administrator reported his execution of the order and that Amos. Vines
“Filed in office of the judge probate court, approved and ordered recorded and sale confirmed, this 26th day of February, 1878. John C. Morrow, Judge Probate Court.”
This indorsement was in the handwriting of the judge’s clerk. The probate record introduced in evidence showed an order and decree of the court which, referring to the order of sale, reciting the court’s examination of the report of sale, and its. satisfaction with the sale reported, confirmed the sale and ordered a deed to Vines. This is the whole substance of the probate record. The decree says nothing in respect of the sale to the administrator. We cannot think that the clerk’s indorsement amounted to anything as evidencing action by the court, and, besides, it has long been settled that, where the personal representative purchases at his own sale, in the subsequent proceedings to get a deed he is regarded as acting in his capacity as purchaser, not as personal representative; for himself, not his trust; and that no title passes until, after notice to the heirs or devisees, a deed is ordered and executed by a commissioner of the court’s appointment. By the proceeding shown on the record of the probate court Gwin got no title nor any evidence of title. On this point we need, do no more than cite the cases to be found in the annotation to section 2644 of the Code.
(11) Prescription operates to maintain a present status of apparent right or title that parties in adversary interest have negligently allowed to continue without interruption for 20 years. Presumptions necessary to maintain the status are indulged, but, in cases involving the title to lands, they must be based upon a continuous adverse use. All our cases on the subject recognize this as the true basis of the doctrine of prescription. The contention that a deed from the probate court to Gwin should be presumed after so long a time seems to be most confidently placed upon the possession of defendants and the alleged possession of their predecessors in claim. If the issue were simply one between. plaintiff's undisputed inheritance and’ defendants’ paper title, unaffected by any use or enjoyment of the property, unquestionably the status to be preserved would be that of the inherit-
Defendants rely upon Marston v. Rowe, 43 Ala. 271, as going to show that continuity should be presumed. That was a suit in chancery, and, as we read the case, the court proceeded on the following facts, to state them briefly: Dexter, under whom Marston claimed by mesne conveyances, had an equity in a tract of land, having advanced to one Collins the money for its purchase from the government with an understanding that he was to have a bond for title as security, and in satisfaction of that equity had been put in possession of a part of the tract as owner by Collins after he got his patent from the government. Rowe claimed by purchase at a sale under execution against the devisees of Collins. The devise, we infer from the statement of the case, was of testator’s right, claim, and interest in the tract described in the patent. Dexter divided the part thus delivered to him into lots something after the fashion of the Monte Sano Company in this case. Fourteen years later, Dexter’s grantee, who stood in the chain of title ahead of Marston, was in possession. These possessions were not shown to have been continuous in fact, as the court conceded in effect; but for more than twenty years after the delivery of possession to Dexter the devisees remained out of possession, and, with full knowledge of the facts, had done nothing by way of asserting any claim to the property. On the contrary, in speaking of the property, they admitted that it was Dexter’s. Although Rowe had been in possession for six or
(12) Defendants contend further that Gwin acquired an equity in the land in dispute by accounting for the amount of his bid for the land on final settlement and distributing the net balance then on hand among the children according to the decree of the probate court. His account, filed in the probate court, tends to sustain his contention as to the facts, though, perhaps, not so clearly as it ought. But whatever force the suggestion might have in a court of equity, our cases hold that the estoppel thus invoked could invest in Gwin nothing more than an equity of which a court of law will take no cognizance in an action of ejectment instituted to try only the legal title.—Woods v. Montevallo Coal Co., 84 Ala. 560, 3 South. 475, 5 Am. St. R. 393; Standifer v. Swann-Billups, 78 Ala. 88.
In’ view of defendants’ citation of Lacey v. Southern Mineral Land Co., 180 Ala. 57, 60 South. 283, in connection with their insistence upon the presumption of a deed to Gwin, it may be well to state our opinion that no such presumption is raised by the
Plaintiff appropriately put in evidence so much of the probate record as proved the widow’s dissent from the will and the assignment of dower, this to show that the widow had been divested of any right to the possession of the rest of testator’s land; but, so far as we have been able to see, the remainder of that record had no proper place in the evidence, since it was manifestly insufficient for the purpose for which it was offered by defendants.
The best consideration we have been able to give the case leads us to conclude that the charge given by the trial court did not follow the law, and for that and the -other reasons indicated the judgment is reversed, and the' cause remanded for another trial.
Reversed and remanded.
Rehearing
ON REHEARING.
The brief for appellees and the authorities cited thereon had due consideration on the original submission. On reconsideration of the case, we have found no reason to change our opinion. In view, however, of a suggestion, made for the first time on this application, concerning the admissibility of the testimony of plaintiff’s brother and sister that they laid no claim to the property in suit, we think it well to add that, if appellees h.ad acquired by conveyances the interests which descended to these witnesses and sought to exclude such interests from the operation and effect of any possible verdict and judgment in favor of appellant, the conveyances should have been offered in evi-ilence and followed up by a request for appropriate instruction
Application denied.