Wilson v. Glenn , 68 Ala. 383 ( 1880 )

SOMERYILLE, J.

The general and well established rule in cases of ejectment is, that the plaintiff is required to recover, if at all, upon the strength of his own title, and not upon the mere weakness of his adversary’s, Brock v. Yongue, 4 Ala. 584; Tyler on Ejectment, 72. The first charge requested by defendant was a correct exposition of this principle and should have been given.

Rut it is equally well settled, that prior possession of the-premises sued for by any plaintiff in this action, creates a. presumption of title, which can only be rebutted or countervailed by showing title in the defendant;, or that plaintiffs-title was subordinate and permissive; or that the action is-barred by the statute of limitations of ten years; or by showing an outstanding title in a third person.—Hallett v. Eslava, 2 Stew. 115; Russell v. Erwin’s Adm’r, 38 Ala. 44; Smoot v. Lecatt, 1 Stew. 590; Code (1876), § 3225. As against a mere trespasser,, however, a bare peaceable possession by an actual occupant, under claim of ownership, is ordinarily sufficient to authorize a recovery, and such trespasser can not defend successfully by showing an outstanding title, with which he in no way connects himself.—Smoot v. Lecatt, supra; Trial of Title to Land (Sedg. & Wait), §§ 718-720.

Where the possession of the plaintiff) and of those front whom he 1ms derived title, has been open, notorious, adverse, and accompanied with uninterrupted claim of ownership for ten years or more, this would be sufficient to maintain the action as against any outstanding title, whether the defendant connects himself with it or not, and’ without regard to-color of title.—Smith v. Roberts, 62 Ala. 83.

Where the possession of the premises is abandoned by either .party, the question as to whether they are left animo revertendi is one for the consideration of the jury, but whether such a question arises in the case is for the court to determine.—McCall v. Pryorr, 17 Ala. 533.

As there was some evidence before the jury tending to show possession of the land in controversy by the plaintiff' and those from whom he claimed title, for ten years or more, and also evidence from which the jury might have inferred that defendants and those from whom their possession was derived were trespassers, we see no error in the ruling of the court below, other than the refusal to give the first charge requested.

There was no error in admitting the mortgage in evidence. The acknowledgment was in due form, and taken before a justice of the peace, who was authorized by the statute to take it. Code (1876), §§ 2155, 2158.

Reversed and remanded.