Rivers v. Thompson , 43 Ala. 633 ( 1869 )

B. F. SAFFOLD, J.

This is an action of ejectment under the Code, by the appellee against the appellant. The issue is joined on the plea of the general issue. The plaintiff’s title to the land is derived as follows : A patent from the United States to Eli S. Shorter and John S. Scott. The petition of Iverson, as administrator of Scott, to sell his undivided half interest, filed January 31st, 1853. The order of the court for the sale, April 18th, 1853. The report of the sale to Alex. J. Robinson, and his payment of the purchase-money, July 25th, 1853. The confirmation of the sale, May 9th, 1859. The deed from Iverson, as administrator, to Robinson, June 2d, 1859. A deed from Robinson and wife to the heirs-at-law of Eli S. Shorter, made April 11th, 1857. Another deed from Robinson and wife to the heirs-at-law of Shorter, by name, dated June 11th, 1857. A deed from R. C. Shorter and wife, John A. Urquhart and wife, and J. B. Oliver for himself, and as trustee of his wife Virginia, to the plaintiff, dated June 3d, 1857. The testimony of J. Gr. Shorter, that the grantors of the last mentioned deed were the heirs-at-law of Eli S. Shorter.

The title of the defendant is derived from a deed to him, made by M. B. Wellborn, December 11th, 1856, for one undivided half of the premises. Wellborn having purchased at a tax sale in April, 1854.

It is insisted on the part of the defendant, that the deed from the heirs-at-law of Shorter to the plaintiff was made during his adverse possession of the premises, and is on that account void. A tax collector’s deed is color of title, and possession taken and held under it is adverse possession.—Dillingham, v. Brown, 38 Ala. 311. A conveyance of land, by one against whom the land conveyed was held adversely by claim of title is void.—Dexter and Allen v. Nelson, 6 Ala. 68. The conveyance to the plaintiff was in June, 1857. The defendant testified, that in January, 1857, he leased forty acres of the land to a person who cut some logs to build a house, and that he himself cut some timber and hauled it off. He also states, generally, that he took possession in January, 1857.

Adverse possession is that kind of continued occupation and enjoyment of real estate which indicates an assertion of right on the part of the person maintaining it. — Webster’s Unabridged Dictionary. It is a question of fact, and the weight of circumstances tending to establish it, must be determined by the jury, under appropriate instructions from the court.—Benje v. Creagh's Adm’r, 21 Ala. 151. It was the province of the jury to find whether the acts of the defendant, which were testified to, constituted such a possessio pedis, and assertion of right, as amounted to adverse possession. The testimony on that point was not of such conclusive character as to justify the charge given by the court.

The sale of Scott’s interest in the land by his administrator can not be collaterally impeached after the jurisdiction of the probate court had attached.—King v. Kent's Heirs, 29 Ala. 542. The conveyance of J. Berrien Oliver, for himself, and as trustee of his wife, she having died subsequently, and he being entitled to a life estate, would give to the plaintiff a right to recover his interest in her estate in the premises. The sale of the land to Wellborn by the tax collector in 1854, is void, unless it can be shown that the^provisions of section 428, old Code, were complied with. Lyon et al. v. Hunt et al., 11 Ala. 295; Pope and Hamner v. Headen, 5 Ala. 433. It is not the policy of the law to deprive the citizen of his property by sales made on account of the government, through its officers, who have no interest in the matter, without putting him wholly in fault in not complying with his obligations.

For the error in the charge of the court, the judgment is reversed and the cause remanded.