87 Ala. 436 | Ala. | 1888
Transcripts of patents to portions of the land sued for, authenticated by the certificate of the “Acting Commissioner of the General Land Office,” were received in evidence, against the objection of defendant. The grounds of objection are, that an acting commissioner is not authorized by law to make such certificate, and that the absence of the original patents was not accounted for. The certificate itself does not appear in the record, and we must assume, in favor of the ruling of the court, that it was in due and proper form. Under the statute which declares that “the certificate of the head of any bureau or department of the general gov-
The plaintiff derives title to the lands as the only child and heir of Marshall J. Alexander, to whom they were sold and conveyed by James A. McCampbell, by deed dated January 18, 1855. The defendant may assail the genuineness of the deed, the factum, and date of its execution; but, its execution being proved, it is valid as between the parties, and vests a title in the grantee, valid as to all persons except purchasers from- McCampbell and his creditors. The execution of the deed does not appear to be seriously controverted, though the circumstances may be somewhat suspicious. The jury found in favor of its execution, and we shall therefore assume its genuineness. The patents issued to McCampbell, the deed to Alexander, and the proof of the heirship of plaintiff, establish the legal title to be in her, which entitles her, prima facie, to maintain the action. The defendant does not pretend to claim title from McCampbell or Alexander. The real defense is adverse possession under color of title, for a sufficient time to defeat the plaintiff’s right of
The plaintiff’s father died September 12, 1862; she was born May 31, 1863, and the suit was commenced May 13, 1887. Immediately on the death of an ancestor, his lands descend to his heirs, who are entitled to possession, unless intercepted by the exercise of the statutory authority of the personal representative. The heirs can successfully maintain ejectment against any person in possession, claiming to hold adversely, except the widow or the personal representative of the deceased, though the widow’s dower has not been allotted or assigned. Until allotted, she has no legal estate or interest in any specific part of the land, and her right to an assignment of dower does not suspend the heirs’ right of action. —Rives v. Brooks, 80 Ala. 26; Turnipseed v. Fitzpatrick, 75 Ala. 297.
The plaintiff’s cause of action accrued as soon as there was any person in the adverse possession of the lands, claiming by independent right. Section 2624 of Code, 1886, provides, if any one entitled to bring suit, or make entry, is, at the time the cause of action or right of entry accrues, a minor, or under other legal disability, he shall have three years after the termination of such disability, in which to bring suit or make entry. This general provision is, however, qualified by the further express provision: “But no disability shall extend the period of limitation, so as to allow such action to be commenced, or entry or defense made, after the lapse of twenty years from the time the cause of action or right accrued.” This is a statutory affirmation of the doctrine of prescription, which is so extensive in its scope and operation, that proof of no disability whatever arrests or rebuts the presumption.—McCartney v. Bone, 40 Ala. 536; Garrett v. Garrett, 69 Ala; 429; Harrison v. Heflin, 54 Ala. 552; Matthews v. McDade, 72 Ala. 377. Governed by the same policy of security and repose to society, and the neces
It is contended, that the possession of Samuel P. Hudson, under whom the defendant claims, and who, it appears, had been some time prior, and was at the time of his death, in possession, was permissive in its inception; and that it could not become adverse, without a distinct imd open disavowal of the title of the true owner, and the assertion of a hostile title brought to her notice. Such is the settled rule. Had Hudson lived, his possession, if permissive, could not have become adverse without such disavowal and assertion. But a possession, however rightfully it may originate, may be converted into a possession hostile and adverse. It appears that, after his death, his administrator sold the lands as the property of his estate, in March, 1866, at which sale different parcels were purchased by different parties. The sales were reported and confirmed by the Probate Court, and, on payment of the purchase-money, conveyances -were made to the purchasers, respectively, under order of the court. It is admitted that the proceedings in the Probate Court, and the conveyances of the administrator, were sufficient to invest the purchasers with all the right, title and interest which Hudson had at the time of his death. There is evidence tending to show that the purchasers went into possession immediately after the sale, and that they and those to whom they sold and conveyed, and their sub-vendees, have been in possession ever since. On this question, however, there is a conflict of evidence. The defendant derives title by mesne conveyances from the purchasers at the administrator’s sale.
If a purchaser of laud, under an executory contract, sells and conveys to a third person for a valuable consideration, which is paid, and places him in possession, under a conveyance which is claimed and asserted to pass the entire estate, and under which such third person claims to hold, his possession is adverse to the original vendor, _ though the first purchaser had not paid the purchase-money, nor received a conveyance.—Walker v. Crawford, 70 Ala. 567; Beard v. Ryan, 78 Ala. 37. If, after the death of Hudson, his administrator sold the entire estate in the lands, and on payment of the purchase-money executed conveyances to the purchasers, asserting that they passed the entire estate, such conveyances constituted color of title, and were inconsistent
It is well settled that possession, in order to ripen into a title, and bar an entry by the true owner, must not only be open, notorious, and adverse, but also continuous for the statutory period. There being some evidence tending to show that the possession was interrupted, defendant, in order to meet this aspect of the evidence, requested the court to instruct the jury, that the entry of a mere intruder, or trespasser, who enters upon land without claim or title, would not interrupt the continuity of defendant’s possession. The charge states the rule too broadly. Some courts hold, that a fraudulent or wrongful entry operates to break the continuity of possession, so as to defeat the operation of the statute of limitations. This doctrine is qualified by our decisions. The rule, as settled in this State, is, that tbe unknown intrusion of mere trespassers will not interrupt the continuity, unless continued for sucb length of time that knowledge of the intrusion is presumed, or so as to become assertions of adverse rights. If they are known, they become adverse assertions of right, and operate to break the continuity, unless legal remedies are resorted to in a reasonable time to regain possession, and prosecuted to a successful termination. —Beard v. Ryan, supra; Bell v. Denson, 56 Ala. 444; Farmer v. Eslava, 11 Ala. 1028.
The defendant’s possession, being under color of title, is not limited to the lands actually occupied, but extends to the contiguous lands, embraced in the color of title. The possession of a trespasser, without color of title, is confined to his actual occupancy. There being several parcels of land, the intrusion of a mere trespasser would not break the continuity of defendant’s possession, except as to that portion of the land actually occupied by such trespasser.
We should remark that the charge requested by defendant, on the effect of the proceedings in the Probate Court, and the sales by the administrator of Hudson, is defective, for the reason, that it omits from its hypothesis the continuity of the possession for the statutory period.
It was competent for the witness Skelton to testify that the defendant went into the possession of the lands “and thereafter controlled them.” Control is a statement of collective facts, involving management and acts of ownership. If the plaintiff desired to know on what the witness founded'
Eor the error in excluding the testimony of the witness, the judgment must be reversed, as we can not assume that it was without injury.
Reversed and remanded.