63 So. 943 | Ala. | 1913
— The undisputed evidence shows that this defendant was in the actual possession of the land sued for, claiming it as his own, for about 40 years. This being true, such possession on his part, without recognition of any claim, light, or titie of another, would operate as an absolute repose under the doctrine of prescription. — Roach v. Cox, 160 Ala. 425, 49 South. 578, 135 Am. St. Rep. 107, and cases there cited. The rule, however, is that neither the statute of limitations nor the prescription of 20 years begins to run against a remainderman until he has a right to sue, that -is, until the termination of the life estate. — Bass v. Bass, 88 Ala. 408, 7 South. 243; Bolen v. Hoven, 143 Ala. 652, 39 South. 379; Winters v. Powell, 180 Ala. 425, 61 South. 96.
While counsel for the defendant stated in open court that he did not claim under any one, but based his title solely upon adverse possession, the plaintiff introduced deeds to the land to said defendant from J. M. Rabby, the husband of Adele Rabby, and which said deeds were made after the death of the said A. Rabby. So the question arises, and which is the chief issue in this case: Did the said Adele Rabby, at the time of her death, own the land, or have such a title to or interest in same as would
So much of the oral charge as was excepted to by the appellants conforms to the foregoing views. Moreover, it does not appear that the exception was reserved before the jury retired. — Carter v. Tenn. Coal Co., 180 Ala. 367, 61 South. 65, and cases there cited.
Charge 3, given at the request of the defendant, should have been refused. It invaded the province of the jury, ignored a feature of the plaintiffs’ evidence, and was contradictory. It was for the jury to determine whether or not, even under the facts hypothesized in the charge, the acceptance of the deeds from J. M. Rabby by the defendant was evidence of or created an inference that Adele Rabby owned the land. There is no evidence in the case tending to show that J. M. Rabby owned or claimed the land, except through the death of his wife, and the making by him of a deed to same; and the acceptance thereof by the defendant of said deed would at least afford an inference for the jury that he was conveying the title acquired by the death of his wife, and a recognition both by him and the defendant that the said Adele Rabby owned the said land. Moreover, we do not see how the defendant was an adverse holder, if he pro
Charge 9, given at the defendant’s request, asserts the law and the truth; but it was calculated to mislead in the present case. Technically, Adele Rabby had to have what is termed the “legal title” to the land; but, if she held possession under color of title, this was sufficient to enable her to recover same against one not showing a superior title, and would be such- an estate as would enable the husband to take a life interest in the land. The charge also- pertermits the fact that the Sadler and Riley deeds would not alone prove that Adele Rabby had the legal title. They, if taken alone, would not do- so-; but when taken in connection with the plaintiffs’ evidence as to the possession of Adele Rabby, which is ignored in the charge, this would prove, as against this defendant, that Adele Rabby did have such a legal title to the land as would enable her or her representatives to recover the same in ejectment, or -which would afford such an ownership by her as would enable her husband to take a life estate in said land. Whether or not the defects as pointed out could have been cured by explanatory charges by the plaintiff so as to save a reversal, we need not determine, as the case must be reversed for other reasons. It is sufficient to say that the trial court can safely refuse the charge upon the next trial.
The trial court should have refused charge 10, given at the request of defendant. Adele Rabby could recover in ejectment against the defendant upon her color of title and prior possession of the land, whether in the
For like reasons defendant’s chai’ge 19 should have been refused. The law does not presume title in the subsequent possessor of the land without color of title, as against a prior possessor under color of title, unless the prior possession was abandoned without an animus revertendi. — L. & N. R. R. Co. v. Philyaw, 88 Ala. 269, 6 South. 837.
Charge 20, given for the defendant, was correct, and contains the identical omission which rendered charge 19 bad.
Charge 16, given at the request of the defendant, can well be refused upon the next trial. The law may presume a conveyance by an adverse possession of 20 years; but the assertion that it would presume a deed from the Yidmers as heirs of Mrs. Rabby is inconsistent with their claim of title. If they had any title, it was as remaindermen, and, if they were remaindermen, the law would not presume a conveyance from them to the defendant. True, the charge hypothesizes adverse possession; but, if the Vidmers had title as remaindermen, there was no adverse possession, and, if they had none, the law would not presume a deed from them to the defendant.
The trial court should have given plaintiffs’ refused charge 3. It may be true that defendant announced that he did not claim through Adele Rabby; yet there was evidence from which the jury could infer that he did, and which fact is hypothesized in the charge, and, if such was the case, he is estopped from-denying her title.
■ — Pendley v. Madison, 83 Ala. 484, 3 South. 618. If, therefore, the jury should find that the defendant claimed title from Adele Rabby by purchasing from her husband, he was estopped from denying her title, and having purchased from the husband, and not from her, he only acquired the life estate of J. M. Rabby, and the plaintiffs would be entitled to recover.
Plaintiffs’ refused charge 4 should have been given for reasons heretofore set out in this opinion.
Plaintiffs’ refused charge “A” should have been given. If the defendant entered under the deeds from J. M. Rabby, then the only evidence fixing any rights in the said Rabby was through his wife, and the defendant would therefore claim under Adele Rabby, and would be estopped from denying the title of the said Adele Rabby. Of course, it was a question for the jury as to whether or not the defendant entered and claimed under the deeds from the husband, J, M. Rabby; but this charge hypothesizes the fact that he entered and claimed the. land under said deeds.
It may be that the giving of plaintiffs’ charge 5 rendered the refusal of some of the other charges innocuous to the plaintiffs; but this we need not decide, as the giving of same did not cure or neutralize all the errors
The judgment of the law and equity court is reversed, and the cause is remanded.
Reversed and remanded.