76 Ala. 600 | Ala. | 1884
— Whore one is in actual occupancy of a part of a tract of land, and holding the entire tract under claim and color of title, he will be held to be in possession of the remainder, where there is no other person in possession claiming in antagonism to him. The possession of the occupant, in such cases, is deemed to be co-extensive with the boundaries described in the deed. — Bohannon v. The State, 73 Ala. 47, 50 ; Farley v. Smith, 39 Ala. 38 ; Bell v. Benson, 56 Ala. 444 ; Trial of Title to Lands (Sedgw. & Wait), §§ 728, 763, 768.
2. The defendant is shown to have been in actual occupancy of one acre of the forty-acre tra.ct in controversy, claiming the whole, under a deed from Gantt and wife, bearing date Decern*ber 19th, 1882. Although this instrument may have been invalid as a deed, and totally ineffectual to convey any title, because it was an attempted conveyance of the grantor’s homestead, void for want of any certificate of acknowledgment, showing the voluntary assent and signature of the wife; yet it was manifestly admissible as color of title, and to show the extent of defendant’s possession. — Stovall v. Fowler, 72 Ala. 77; Allen v. Kellam, 69 Ala. 442; 2 Smith’s Lead. Cases, 563.
3. The defendant is further shown to have been in adverse possession of the land sued for, claiming it as his own, at the time when Gantt and wife executed to the plaintiff the deed under which he claims title, which latter deed bears date March 30th, 1883. This fact rendered the conveyance to the plaintiff absolutely void and inoperative against the defendant. — Johnson v. Cook, 73 Ala. 537; Humes v. Bernstein, 72 Ala. 546, and cases cited.
Under this state of facts, the court properly charged the jury, that, if they believed the evidence, they must find for the defendant.