84 Ala. 560 | Ala. | 1887
It came from one claiming an interest in the land unaccompanied by any circumstance casting suspicion on its genuineness. It was admissible, therefore, without any proof of its execution, and without preliminary proof of possession under it, if otherwise relevant — an inquiry which we next consider. — White v. Hutchings, 40 Ala. 253; England v. Hatch, 80 Ala. 247; 1 Greenl on Ev. § 144; Starkie on Ev. (Sharswood), *521-23.
How far color of title to the land, accompanied by actual occupancy of a part, will extend the occupant’s possession constructively to the whole tract included in the deed is not definitely settled, and, we may add, is a subject full of difficulty. The general rule is, that where one enters upon a tract of land, with a deed or color of title to it, his actual occupation and improvement of a portion of it, will usually be construed as a possession of the whole, co-extensive with the boundaries described in the written instrument under which he claims title, if there be no antagonistic possession. — Burk v. Mitchell, 78 Ala. 61, and cases cited; Farley v. Smith, 39 Ala. 38. Particularly is, this true where the person so entering makes a notorious claim to the whole by any acts suitably asserting his claim of ownership. — Crowell v. Bebee, 33 Amer. Dec. 172.
The authorities limit the application of this rule by the
But such constructive possesion of the occupant may, of course, become adverse by acts of dominion or ownership properly asserted over the unoccupied tract, in the absence, we repeat, of any actual possession by the true owner. And it is evident that less notoriety and even less frequency of such acts of ownership will be required with possession under color of title than without it. — Hodges v. Eddy, 38 Vt. 327; Trial of Title to Land (Sedg. & Wait) 2d Ed. § 771. The use made of the land must bo suited to its nature, adaptability and locality. In a recent case it was said that the cutting and removing timber from wild land, unfit for any other use, might amount to a possession, and, if accompanied by color of title, might constitute a disseizin. — Childers v. Calloway, 76 Ala. 128, 133; Rivers v. Thompson, 46 Ala. 335; Burk v. Mitchell, 78 Ala. 61. In another case it was held, where the occupant cleared, fenced and improved 200 acres of the tract consisting of 1500 acres, and paid taxes on the whole, cutting trees from the unenclosed part for fencing, firewood and timber, his actual possession of the part extended over the whole by color of title which he held to it. — Munroe v. Merchant, 28 N. Y. 1. The doctrine of adverse possession rests upon the presumed acquiescence of the party against whom it is held, and such acquiescence again presumes knowledge. All the law requires, therefore, is that the possession, or rather the acts of dominion by which it is sought to be proved, shall be of such a character as may be reasonably expected to inform the true owner of
The evidence shows that the lands in dispute were never occupied or used by any one for any purpose, except that plaintiff resided on them two or three years prior to the war, and the defendant cut a considerable amount of timber from them about two years prior to this suit. But after the bond for title was executed to the Alabama Goal Mining Company, about the year 1857, the plaintiff abandoned the actual occupancy of the lands, and the vendee company sold the house in which he lived to one Calvin Harris, who removed it from the land. The plaintiff remained in the neighborhood in the employment of the company, until about the year 1876 or 1877, when he removed from the State. Several intermediate conveyances, by deed, mortgage, and under decree of Chancery Court, were made at various times between the years 1860 and 1882, of the land above mentioned as conveyed to the Central Mining Company in April, 1863, or fractional interests therein — a tract, as we have said, of 1200 or 1400 acres, embracing the land in controversy, and other lands, some of which were in the actual possession of the grantors. The evidence thus tends to show that these dealings with the lands of the plaintiff, including the appropriation and sale of the house once occupied by him, were with his knowledge and acquiescence. Whether they would authorize a jury to find such an abandonment of the premises by the plaintiff and such a recognition of the constructive possession of the land by the defendant and those under wljom it claims, as under color of title would amount to adverse possession sufficient in character and duration to bar this action under the statute of limitation of ten years, we do not decide, because the record raises no such question. But the charge given by the court decides, as matter of law, that if these facts are believed by the jury the action is barred. This withdrew the whole question of adverse possession from the consideration of the jury, which in this case, was error.
Nor does the evidence, in our opinion, raise any presumption, as matter of law, that the plaintiff ever executed a con
For the error in giving the charge requested by the defendant, the judgment is reversed and the cause remanded.