Ryan v. Kilpatrick , 66 Ala. 332 ( 1880 )

STONE, J.

Neither plaintiff nor defendant in this action traced title from the Government to himself. The Government patent was issued to Hardy H. Moore, and neither contending litigant traces title out of him. The plaintiff’s claim is as follows: His testimony tends to show, that Gabriel Moore went into possession of the lands in controversy in 1848, and continued in possession, exercising acts of ownership, until March, 1850, when he conveyed the lands to Einley and Bush, trustees, in trust for his (Moore’s) wife and children, remainder to his children. Moore continued to occupy the lands, although controlled by the trustees, until his death in-1853. He left his widow and two infant children surviving him. In 1854, Mrs. Moore intermarried with John Ryan, father of the plaintiff, who then took up his residence on the premises. One only child, the plaintiff, was the issue of the second marriage, who attained his majority in 1876, and soon afterwards commenced this suit. Mrs. Ryan, the mother, died in 1857, and her two children by Moore died in infancy, leaving no lineal descendants. The trustees continued to control and lease out the lands, in obedience to the directions of the trust deed, until 1856 or 1857, after the death of Mrs. Ryan and her two children by Moore. After that, Ryan, the second husband, controlled and leased out the lands, in the right and interest of his infant son, until 1872. His possession was open ■ and notorious, and was known to Arthur Beard, in whose right the present defendants claim. In 1872, the tenant placed in possession by Ryan, moved off the premises, and Beard then took possession, without Ryan’s leave, and continued in possession, claiming title. The tract of land in controversy contains about seventy-nine acres, of which about one half was cleared and cultivated. The testimony tends to show the cleared land was actually occupied and cultivated — a pedis posséssio — during all the time. The other half was unreclaimed, or woodland, of which there was no actual occupancy.

Two questions arise on this testimony. First, was there a continuous, actual occupancy of the premises, independently and under claim of right, for ten years before Beard took possession. Of course, this means ten years exclusive of the four years, eight months and ten dajs, during which the statute was suspended on account of the war. If there was such independent holding under claim of right, then such adverse holding is equivalent to a legal title, on which an action of ejectment may be maintained or defended. And neither title, nor color of title, is necessary to perfect this right.—Smith v. Roberts, 62 Ala. 83, and authorities cited; Dillingham v. Brown, 38 Ala. 311; Steele v. Steele, 64 Ala. 438. This right, however, depending on actual possession — pedis possessio, as it is sometimes phrased — extends only to the lands actually occupied. It draws to it no constructive possession. — Ang. on Lim. §§ 391-4.

The second question is, when the possession is taken or held under title, or color of title. In this class of cases, the occupancy of the claimant is not limited to the precise quantity actually possessed by him. It embraces all the contiguous laud, not otherwise possessed, conveyed in the title or color of title under which he enters or claims. — Ang. on Lim. § 400; Tyler on Ejectment, 895.

There can be no question that the deed from Gabriel Moore to Finley and Bush, trustees, no matter how defective Moore’s title may have been, constituted color of title in his grantees, and in those claiming and occupying under them. Riggs v. Fuller, 54 Ala. 141; Ladd v. Dubroca, 61 Ala. 25; Molton v. Henderson, 62 Ala. 428; Dillingham v. Brown, 38 Ala. 311.

It is thus shown that the deed of Gabriel Moore was an important factor, in defining the extent of the adverse holding asserted and claimed by plaintiff, and those under whom' he claimed. The charges asked ought to have been given; because they assert a correct principie of law, and were justified by the state of the evidence. The presiding judge gave as a reason for refusing the first charge asked, “ that the plaintiff in this case claims as the heir of the said Gabriel M. Moore, and therefore the deed from Gabriel M. Moore can not give, either to him or his heirs, color of title.” We suppose the presiding judge was misled by the remark of the witness John Ryan, father of plaintiff, that he “never took possession of, or claimed said lands so conveyed, as his own, but only as the property of the estate of Gabriel M. Moore and his heirs at law, and after their death held possession of the same as the property of said plaintiff, who' was a minor up to July, 1876, and whose father said witness is.” This witness has previously testified, that he went into possession of said lauds in 1856, and remained in quiet and peaceable possession, “ using and cultivating said lands and claiming title thereto as the property of said William and Mary Moore” [children of said Gabriel M.], “during their lives, and after their deaths as the property of said plaintiff, Samuel E. Ryan, as heir at law of said William and Mary Moore, continuously from the latter part of the year 1856, up to the latter part of the year 1872.” Now, no part of this language justifies the assumption, that plaintiff claims in this suit as the heir of Gabriel M. Moore; and if it did, it is only the testimony of a witness. The right in which plaintiff claims must be determined by the evidence he offers in support of his title. Tested thus, he claimed as heir at law of William and Mary Moore, who claimed under the deed of their father.

The motion to suppress the bill of exception's can not be entertained.—Weir v. Hoss, 6 Ala. 881; Hollingsworth v. Chapman, 50 Ala. 23.

Reversed and remanded.