Stiff v. Cobb, 126 Ala. 381

126 Ala. 381 | Ala. | 1899

SHAEPE, J.

The lot in suit is a part of a block in the town of Centre, on which the plaintiff’s parents, M. L. Stiff and his wife, Jane Stiff, resided together for about ten years next before and at the time of Mr. Stiff’s death, which occurred in 1867. The title is not shown to have been in either the husband or wife other than such as could have been acquired by possession and claim of ownership. There is evidence tending to show that the block in question was obtained from one Cole in exchange for lands in the country to which Mr. Stiff had a deed from one McElrath; but though the plaintiff testified on the trial that he had seen a paper writing from Cole to his father, which was probably lost or destroyed, there was no attempt to show the contents of the writing. The plaintiff claims title as the heir of his father, and the defendant, Mattie Cobb, in whose right her husband, the other' defendant, rests his defense, claims by a deed from plaintiff’s mother, containing terms which by the statute are made to import a warranty of title. Mrs. Cobb’s deed was made in 1897, and her possession and claim thereunder linked by this deed to an asserted previous adverse possession in Mrs. Stiff, constitutes the claim of title upon which the defendants rely.

It is axiomatic that a plaintiff in ejectment must establish title in himself and cannot recover on a weakness of title in the defendant. In order to show title passing to him by descent in the absence of documentary title in his father, it was incumbent on the plaintiff to prove that his father had acquired title by adverse possession of the land during the period of ten years, which, under the statute, would have barred an action for their recovery. Of this there was evidence introduced on the trial, but without objection to her competency on this point, Mrs. Stiff testified that the property was held as hers for about forty years, which covered the period during which it was resided on by her and her husband; and thus a conflict of evidence was produced as to whether the possession was in her or was held in right of her husband.

Possession to be adverse must be exclusive, and, therefore, two persons cannot hold the same property adversely to each other at the same time, and for the additional reason furnished by the common law unity of coverture, Mr. and Mrs. Stiff could not have held adversely to each other.—Gafford v. Strauss, 89 Ala. 283; Bell v. Bell, 37 Ala. 536; 1 Am. & Eng. Encyc. Law, 820. If either had owned the legal title, the law would have referred the joint occupancy to the right of such owner; hut in the absence of title in either it was possible for an adverse possession to have been established in either. If such posession was in M. L. Stiff, and had ripened into a title at the time of his death, the widow, if entitled to dower, was entitled to hold possession until dower was assigned her.—Code, § 1515. If her possession originated in her quarantine rights the fact that she rented out the place for some years did not work an abandonment of those rights.—Inge v. Murphy, 14 Ala. 289; Oakley v. Oakley, 30 Ala. 131. Possession so held by the widow is in subordination to the title of the heir; and however long continued no hostile claim of ownership will make it adverse to the heir, for possession can only he adverse against one who is in condition to dispute it.—Robinson v. Allison, 124 Ala. 325; s. c. 97 Ala. 596. If such was the character of his mother’s possession, and if dower was never assigned,, the plaintiff could have maintained no suit against her for possession until she sold the land, but that event gave him the right to sue her alienee.—Wallace v. Hall, 19 Ala. 367; 2 Scribner on Dower, 59.

Whether the plaintiff’s father held and acquired title by adverse possession of the land, was in view of the conflict in evidence, a question for the jury to determine.

An essential element of adverse possession is the existence of an intent accompanying the possession, to claim and have ownership in the property held.—Alexander v. Wheeler, 69 Ala. 332, s. c. 78 Ala. 167. As a circumstance tending to prove such intent on the part of Mrs. Stiff during her possession of the lot in suit, it was competent to show in her an equitable claim arising from an investment of her money in the property for which the lot in question was taken in exchange. The inquiry as to whether Mrs. Stiff’s money paid for the land does not directly call for evidence of a transaction with her husband, since deceased, and it must have done so in order to make it objectionable under section-1794 of the Code.—Gamble v. Whitehead, 94 Ala. 335; Wood v. Brewer, 73 Ala. 259; Tisdale v. Maxwell, 58 Ala. 40. Non constat the answer would have relation to a payment of which the decedent never had knowledge, and about which he could not have testified if he had lived.

The sale by Mrs. Stiff of a part of the .single connected block of land at a time when she was in actual possession of the whole was an act of ownership which, as a question of fact, might well have been found referable to every part of the block. Likewise mortgaging the land in 'suit was an act of ownership proper to be looked to in determining the character of Mrs. Stiff’s claim. For that purpose the deed and mortgage objected to, both of which antedated Mrs. Cobb’s purchase, were properly allowed to go to the jury.

The interrogatory to witnesses as to how Mrs. Stiff held or occupied the lot called for a descriptive fact as to nature of her occupation rather than for a conclusion as to the adverse character of her claim. Whether answers to the question irresponsively involved such conclusion it is unnecessary to consider, for only the question was objected to.

The absence of any claim to the property on the part of others, including the plaintiff, if a fact was one bearing ■ legitimately on the inquiry as to whether Mrs. Stiff’s occupation was subject to that of her husband during his lifetime, or if not, whether she thereafter consented to hold under the heirs according to the plaintiff’s contention.

Whether W. A. Cobb had notice of plaintiff’s claim before it was bought by Mrs. Cobb or before it was improved was immaterial to the question of title, and if relevant upon any claim by defendant for improvements, such latter question -was eliminated by the finding in favor of the defendants upon the main issue.

What has been said of evidence will, show there was no error in giving charges 1 and 3.

In each of the remaining charges, the propositions stated are correct.

Let the judgment be affirmed.