123 Ala. 112 | Ala. | 1898
It appears without dispute that in the spring of 1865, the plaintiff, who was a farmer by occupation, acquired the possession of one hundred acres of the land in controversy from his brother by an exchange for other lands. This exchange was not evidenced by any writing, but the plaintiff went into the actual possession of the land and made some improvement by clearing and cultivation and continued to clear, fence and'cfiltivate the tillable portion, increasing the acreage of tillable land to sixteen acre's. The remaining portion of the land ivas uncleared, grown up in trees and other growth,-wild, mountainous and unfit for cultivation, from which he got, as he needed it during each of these years, his fire wood, rails, timber for his own use, and cut therefrom frequently timber which he disposed of to others. There were three houses .upon the tract which were occupied by tenants of plaintiff from 1865 to 1868, when they were destroyed. The continued use of the land under his contract of exchange, in the manner indicated above, in conne'ction with the. lands adjoining owned by him upon which he lived, was exercised by him uninterruptedly until the year 1876, when the testimony offered by the defendant tended to show, which however was disputed, that he ceased to cultivate the fields, and the fences around the cultivable lands were allowed to fall down in places, and shrubbery was permitted to grow up on them, until the year 1889, when he rebuilt the fences and a new house and enclosed a yard around it, to be used by his son as his tenant. It was also proved without dispute that plaintiff’s brother claimed title to the land sued for under a purchase by him from the township trustees, some time prior to its exchange to the plaintiff, and that he Avas in possession of it at the time' the exchange was made claiming under his purchase. It Avas also Avithout dispute that plaintiff’s brother never claimed these lands after the exchange, and that it' Avas generally known in the neighborhood that plaintiff claimed to own the lands, and that his possession Avas neArer interrupted by any one until the defendant brought its action in ejectment against him in 1894, and obtained a judgment for all the land except that in cultivation and enclosed.
The first question then presented is, this being school land and the defendant claiming under a patent from the State of Alabama dated in 1890, and a deed from the plaintiff’s brother with whom he made the exchange, whether ten years’ adverse possession or twenty years’ adverse possession was required to ripen this possession into a perfect title?
Under the Codes of 1852 and 1867 we find the limitation of actions for the recovery of real estate to he as follows:
1. Actions at the suit of the State of Alabama against a citizen thereof for the recovery of real estate must be commenced within twenty years after the accrual of the cause of action.
2. Actions for the recovery of lands, tenements or hereditaments or the possession thereof must be commenced within ten years after the cause of action has accrued.
Prior to the Code of 1852 there was no statute as to time limiting the right of the State to enforce a cause of action brought for the recovery of lands belonging to it. This was the condition that existed as to the statute of limitation when the rights of Miller, the defendant in the case of Miller v. The State, 38 Ala. 600, accrued. And when sued in an action of ejectment by the State for the use of the township trustees for sixteenth section lands, he invoked the defense of adverse possession for ten years, which was denied to him by the circuit court. On appeal, Justice Walicer, speaking for the court, said: “Though the State is a party to this suit, it has
The statute of limitations in respect to lands continued as codified in the Codes of 1852 and 1867, and the construction in the case of Miller v. The State, above quoted, until the 30th day of November, 1876, when the legislature for the evident purpose of relieving trustees of all sixteenth section lands from the operation of the ten year statute as applied in that case, amended the statute exempting them from its operation. — Acts, 1876-77, p. 102. After the passage of this act the case of the State v. Conner, 69 Ala. 212, ivas before this court. This was an action of ejectment brought by the State for. the use of a township to recover of Conner school lands, and was tried in the circuit court on issue joined upon the plea of not guilty which resulted in a verdict and judgment for defendant. The evidence introduced in behalf of defendant tended to establish an adverse póssession by him for ten years prior to November 30, 1876, and before the commencement of the suit. And for the purpose of further establishing his adverse possession he was allowed to introduce certain conveyances as color of title under Avhich he acquired possession and claimed title to the lands, against the objections of the plaintiff to which an exception was reserved. In addition to this exception, the plaintiff requested a charge in writing to tiie effect that the statute of limitations of ten years
It is insisted by appellant that the cases of Gaston v. The State, 88 Ala. 459, Wyatt v. Tisdale, 97 Ala. 594, and Prestwood v. Watson, 111 Ala. 604, are in conflict with the doctrine laid down in the Miller and Conner Oases, and being- later adjudications of this court should be followed. Before entering- upon a discussion of these cases, Avhich we Avill do in the order named above, it will be well to note another change in the statute' of limitations. The act of November, 1876, was carried into the Code of 1876 (§ 3225), and remained in force until the adoption of the Code of 1886. Section 2613 (Code, 1886) provides: “Actions by or for the use of any township for the recovery of sixteenth section or other school lands belonging to the township” must be commenced after the cause of action has accrued within twenty years and not afterwards. This Avas the first time the legislature made, by express declaration, the twenty years statute applicable to causes of action arising- out of adverse holding of school lands. This provision will be found in the Code of 1896 (§ 2794). It Avas while this section of the Code ’of 1886 was in force that these decisions were made. In the case of Gaston v. The State, the suit was commenced in 1888, and the plea of adverse possession of fifteen years was held bad, for the obvious reason that the bar Avas not complete Avhen the act of 1876 Avas passed. Under the averment of the plea the defendant had been in possession only three years when the ten year statute was repealed by that act.
In the case of Wyatt v. Tisdale, the evidence introduced by the defendant establishing his adverse possession and those through Avhoin he claimed for more than twenty years was uncontroverted; and Justice Coleman
1. Actions at the suit of tlie State against a citizen thereof for the recovery of real or personal property.
2. Actions by or for the use of any township for tlie recovery of any sixteenth section or other school lands belonging to the township.’ ”
Tlie statement that subdivision 2 of section 2613 lias been in force since the adoption of tliq Code of 1852 was an error. As we have shown, it had no existence until the adoption of tlie Code of 1886. In this respect the opinion must be modified. As persuasive that Judge Coleman recognized the rule as stated in the Miller Case, he cites it in two places and makes it the foundation of his opinion.
The case of Prestwood v. Watson, 111 Ala. 604, supra, was correctly decided upon the facts. The agreement of facts upon which it was tried will be found in 79 Ala. 417. It appeared that Cooper’s possession, through whom tlie defendant claimed, commenced in 1875, only one year prior to the act of 1876. There being, then, no statute of limitations in force as against township trustees of school lands from November 30, 1876, until the adoption of the Code of 1886, and the suit being commenced in 1885 he could not have acquired the title within that period. Nothing short of twenty years adverse possession would-have given him a title by prescription. So the court in that case properly said: “There was no hostile possession for that period, prior to the commencement of this suit, claimed in the court below, and if it had been claimed, it would, not have found support in tlie evidence.”
We are clearly of the opinion that the rights of the defendant or those under whom it claimed, had. to be as
When the plaintiff acquired possession ' from his brother and the brother accepted the plaintiff’s lands and Avent into the possession of them in the spring of 1865, the contract between them became executed, and the plaintiff’s possession became adverse to him, notwithstanding the exchange was made by parol agreement. There can be no difference on principle between this case and where a verbal sale of lands is made and the purchaser put into possession upon the payment by him of the purchase money. In the latter case the purchaser’s possession after paying the purchase price is presumed to be in his OAvn right and is adverse to his vendor. If this possession continues for the statutory period of ten years Avithout recognition of or subordination to the legal title of the vendor, the right of entry or action to recover the possession is barred.—Potts v. Coleman, 67 Ala. 221; Tayloe v. Dugger, 66 Ala. 451; Beard v. Ryan, 78 Ala. 37; Newsome v. Snow, 91 Ala. 641.
In Normant v. Eureka Company, 98 Ala. 181, this principle is distinctly and clearly announced, and Jus
A majority of the court are of the opinion that the doctrine announced extending the adverse possession under a Aralid parol contract of sale to the boundary of the lands as fixed by the contract is limited in its application as between A’endor and A’endee, or in case of execution sale, to the defendant in execution and the purchaser at such sale. That Avlien no such' relation exists between the parties litigant or their privies that the possession of the adverse holder is limited to his possessio pedis, unless he holds under written color of title. In other words, to extend adverse possession beyond the actual possession the adverse holder must enter upon and hold the lauds under a paper writing fixing its boundaries — that color of title cannot exist or be evidenced in any other way except where the relation exists between the parties litigant above pointed out. Furthermore they hold, this is the settled rule of laAV in this State, whatever may be the doctrine in other States and they must decline to depart from it. They rely upon Hawkins v. Hudson, 45 Ala. 482; Bell v. Denson, 56 Ala. 444; Burks v. Mitchell, 78 Ala. 61; Clements v. Hays, 76 Ala. 280, as supporting their views.
Bearing-in mind that the evidence disclosed no acts of possession by Denson upon the land, which consisted of a tract of three hundred and twenty acres of woodland, except the building of a house in which he resided, the enclosing, clearing and cultivating five or six acres and working on a portion for gold for a period of more than ten years, the charge was clearly erroneous unless the doctrine which I contend for is the law. Clearly if the rule obtains as announced by the other members of the court, the case should have been reversed,
I must confess my inability to comprehend the meaning of what seems to be plain and unambiguous language, if I am in error as to what he intended to say and did say. That he Avas correct in so holding I entertain no sort of doubt. The basis of the doctrine of adverse possession rests upon a possession under bona fide claim or color of title, open, notorious, continuous and hostile to the title of the true OAvner. — Mr. Freeman’s note in case of DeFrieze v. Quint, 28 Am. St. Rep. 158.
Adverse possession rests in the intention of the possessor, and it is said “the intention guides the entry and fixes its character.”—Potts v. Coleman, 67 Ala. 221; Herbert v. Hanrick, 16 Ala. 595; Alexander v. Wheeler, 69 Ala. 332. One of its essential elements as universally recognized by the courts and text writers is that the possessor must claim to own the lands independent of the title or claim of all other persons. If his possession is in recognition of another’s title as superior to his, and it is not material who that other person may be,, no length of time will ripen his holdings into á title by adverse possession, notwithstanding all the other essential elements of adverse possession may exist. The converse of this proposition is equally as sound. If he claims bona fide to own the lands and the other essential elements are shown, his possession, if for ten years, ripens into an indefeasible title, not only as against his vendor but against the world. — 3 Brick. Dig. 17, § § 3, et seq; 1 Brick. Dig. 19, § § 9, et seq.
If the possessor acquires possession by a trespass, his possession is necesarily confined to his possessio pedis, for the obvious reason there is no means afforded by which his intention can be ascertained as to the extent
It is evident that the notice to the owner of the claim of the adverse holder is not dependent' upon a knowledge of the existence of the written instrument or of its contents under which such adverse holder claims title to the lands. It is the knowledge, either actual or imputable, of the possession of his lands by another claiming to own them bona fide and openly, that affects his right of entry.—Brown v. Cockrell, 33 Ala. 38; Hughes v. Anderson, supra. This being true, the only office or function which a written, unrecorded, void and otherwise unknown instrument, so far as the owner is concerned, can possibly fulfill is to afford evidence of the claim of the adverse holder and the extent of that claim. For if it were otherwise a trespasser could never acquire title by adverse possession. Just why a verbal contract fixing the boundaries of the purchaser’s possession is not of equal dignity and entitled to the same weight, when clearly proven, as a void, unknown, unrecorded writing, to serve as a guide in determining his entry and fix its character, I am unable to see. The position taken by my brothers seems to me to be flagrantly illogical and certainly not conducive to justice and equity. For it may be and doubtless is oftentimes the case that the adverse holder knows his deed is void, paying a consideration for the lands in proportion to his chances of success to remain in possession for ten years, and yet he is protected to the full extent of the boundaries described in
The plaintiff in this case Avas not a trespasser. He had paid the purchase price of- the land, and it Avas of no consequence whether his brother had paid the purchase money to the township trustees for it. If he had not, this could not have affected the plaintiff’s rights, if he claimed to oavii it, as he did, as against them.—Beard v. Ryan , 78 Ala. 37; Tayloe v. Dugger, 66 Ala. 444.
A majority of the court hold in consonance with their vieAvs that charges 1 and 2 requested by the defendant should haAre been given. Under the views which I entertain, they Avere properly refused, for the reason that as to the one hundred acres of the land acquired by the plaintiff under his contract of exchange, he Avas entitled to have the court, charge affirmatively that he Avas entitled to recover it. As to AAdietlier he was entitled to recover the forty-five acres was a matter of dispute to be determined by the jury, there being a dispute as to whether it was included in the contract with his brother. And this I conceive to be true, notwithstanding he may not have knoAA'n the location of the boundary lines, but if he claimed to them and they were capable of being ascertained under his contract of exchange.
There is no difference of opinion betAveen us as to any other point in the case.
What Ave have said disposes of all the charges refused to the appellant except charge No. 7. This charge bases the defendant’s right to a verdict to a certain portion of the land in controversy upon the theory that his disclaimer to that portion in the former suit estopped him
The only other matter not disposed of was the ruling of the court in permitting the plaintiff to prove that it Avas generally known in the neighborhood that the land belonged to him against the objection of the defendant. We understand the rule to be that the existence of a fact cannot be proved by reputation or notoriety, yet Avhere the fact is other Avise established, general notoriety in the neighborhood may be proved as competent evidence to charge a resident in such Adcinity with knoAvledge of it. There Avas no error in admitting this testimony under the facts of this case.—Woods v. Montevallo C. & T. Co., 84 Ala. 564; Humes v. O’Bryan, 74 Ala. 81; Price v. Mazange & Co., 31 Ala. 701.
For the error, ms held by the other members of the court, committed in refusing charges 1 and 2, the judgment must be reversed and the cause remanded.
Reversed and remanded.