Vandiveer v. Stickney
75 Ala. 225
Ala.
1883
Check Treatment
SOMERVILLE, J.

Wе discover no error in'the rulings of the circuit court, as shown in the present record.

In Collins v. Johnson, 57 Ala. 304, it was decided that an uninterruptеd, continuous possession of lands by a donee, under a mere parol gift, accompanied with a claim оf right, is an adverse holding as against the donor, and will be protected by the statute of limitations, thus maturing into a good title by the lapse of ten years. The fact is immaterial that such a parol gift of lands conveys no title, and only operates as a mere tenancy at will, capable of revocation or disaffirmance by the donor at any time before the bar of the statute is complete. It is evidence of the beginning of an adverse possessiоn by the donee, which can be repelled only by showing a subsequent recognition of the superiority of the title of the donor. The essence of adverse possession is the’ quo cmimo or intention with which the possession is taken and held by a ‍‌‌‌​​​‌​‌‌​‌‌​‌​‌​​‌‌​​​‌‌‌‌‌​​‌​​‌‌‌​​‌​​‌​‌​​​‍dеfendant. It is, in the settled language of the books, the intention which “ guides the entry, and fixes its character.”—Angell on Lim. § 386 ; Ewing v. Burnet, 11 Peters (U. S.), 41. Even wherе the technical relation of landlord and tenant exists, and despite the settled rule that a tenant will not be permitted to dispute the title of his landlord, there is no principle of law or of public policy which forbids a tenant frоm holding adversely to the landlord, so as to acquire title of the demised premises under the operation of thе statute of limitations. But in all such cases, the presumption in the first instance is, that the tenant’s possession is permissive and in subordination to the title of the landlord, and there must be clear and positive proof of a disclaimer or rеnunciation of the superior title, brought home *228to the knowledge of the landlord with unquestionable certainty. ‍‌‌‌​​​‌​‌‌​‌‌​‌​‌​​‌‌​​​‌‌‌‌‌​​‌​​‌‌‌​​‌​​‌​‌​​​‍— Angelí on Lim. § 444; 2 Brick. Dig. p. 200, §§ 101,102.

The evidence tended to show that the defendants held adverse possession of the lands in suit for more than tеn years prior to the commencement of the action. The undivided interest of Emma Owen, which on her death descended in part to her two brothers, William and Edwin, was released by parol to their other sister, Mrs. Sticlcney, who is one of the defendants. Her adverse possession commenced at this time, which was about the middle of March, 1869, and is shown tо have continued, without any subsequent recognition of the title of her donors, until the commencement of this suit, in May, 1880. The mоrtgage executed by the two brothers to Yandi-veer, the plaintiff, in Tune, 1870, did not change the adverse nature of Mrs. Stickney’s possession, nor operate in any manner to stop the running of the statute.

This mortgage, moreover, is shown to have been executed by the mortgagors during the period of Mrs. Stickney’s occupancy and adverse holding, the hostile character of which was not only known to them, but, in its inception, was expressly authorized by their parol relеase of the deceased sister’s interest in the mortgaged lands. The mortgage was therefore void as tending to рromote champerty and maintenance by traffic in litigated titles. The rule of law rendering conveyances оf lands void, when held adversely, is, in part, one of public policy, designed to “throw obstacles in the way of asserting dоubtful rights to the prejudice of occupants.”—Clay v. Wyatt, 6 J. J. Marsh. 583; Bernstein v. Humes, 60 Ala. 582. “It seems,” says Chancellor Kent, “ to be the general sense and usage of mankind, that the trаnsfer of real property should ‍‌‌‌​​​‌​‌‌​‌‌​‌​‌​​‌‌​​​‌‌‌‌‌​​‌​​‌‌‌​​‌​​‌​‌​​​‍not be valid, unless the grantor hath the capacity as well as the intention to deliver possession.” — 4 Kent. 448.

To avoid a conveyance on this ground, it is not requisite that such adverse possession should be asserted under any color of title, but only under claim of right. But it must \>q actual as distinguished from constructive possession.—Bernstein v. Humes, 71 Ala. 260 ; Eureka Go v. Edwards, Ib. 248 Nor is it required that the mortgagee, or other purchаser should have actual notice of such adverse holding, in order to vitiate the conveyance. The constructive notice implied from possession is sufficient.—Bernstein v. Humes, supra.

Nor, yet again, does a knowledge by one in actual possession, claiming title, that his title is ‍‌‌‌​​​‌​‌‌​‌‌​‌​‌​​‌‌​​​‌‌‌‌‌​​‌​​‌‌‌​​‌​​‌​‌​​​‍defective, avail to destroy its adverse character. The testis the actual claim, аnd not the bona fióles of it, in all cases, at least, where the possession is actual and not merely constructive.—Smith v. Roberts, 62 Ala. 83 ; *229Alexander v. Wheeler, 69 Ala. 332 ; Gordon, Rankin & Co. v. Tweedy, 74 Ala. 232.

These principles аre all pertinent to the present case, and were recognized in the rulings of the court.

The doctrine settlеd in this State is, that the possession of the tenant is the possession of the landlord, and notice of the former is notice of the latter. The reason is, as observed in a former ‍‌‌‌​​​‌​‌‌​‌‌​‌​‌​​‌‌​​​‌‌‌‌‌​​‌​​‌‌‌​​‌​​‌​‌​​​‍decision, that an inquiry of the occupant will be likely to lead to a knowledge of the fact that he is a mere tenant, holding, not in his own right, but in the right of another who is his landlord.—Brunson v. Brooks, 68 Ala. 248 ; Pique v. Arendale, 71 Ala. 91 ; Wade on Notice, §§ 284-286 ; Burt v. Cassety, 12 Ala. 734.

It was immateriаl, therefore, that the mortgagors were in the temporary occupancy of a portion of the property,sued for at the time of the execution of the mortgage, in the. year 1870, provided they entered after the commencement of Mrs. Stick-ney’s adverse possession, and as mere tenants, fully recognizing the superiority of hеr title as owner and landlord. Purchasers from tenants are as fully precluded as the tenants themselves, from disputing the title of their landlord.—Taylor’s Land.& Ten. § 91 ; Bishop v. Lalouette, 67 Ala. 197. The principle settled in McCarthy v. Nicrosi, 72 Ala. 332, does not conflict with this view. There the possession of the vendor and purchaser wаs joint, both being in actual possession at the time the deed was executed. It was held that, in as much as there was no visible change of possession, a third person purchasing would not be charged with constructive notice of the unrecorded deed of the first vendee. If, however, the vendor had openly and visibly yielded exclusive possession to the vendee, and had afterwards gone in as a mere tenant, the rule would have been otherwise. Such is this case, in fact, as well as in principle and legal effect.

Judgment affirmed.