Doe ex dem. Hughes v. Anderson , 79 Ala. 209 ( 1885 )

SOMERVILLE, J.

The main point contended for by appellants’ counsel arises under charges given and refused by the court, touching the defense of the statute of limitations, and the character of the possession by an adverse occupant of land necessary to make it continuous and uninterrupted.

The defendant is shown to have taken possession of the premises sued for under tax-deeds executed by the probate judge of Montgomery county, in the years 1873 and 1874. This action was commenced in May, 1883.

The period of limitation fixed by statute,-for the recovery of real property sold for the non-payment of taxes, is five years after date of sale. — Code, 1876, § 464. This has been construed to mean five years from the date of the delivery and the recording of the deed, after being properly executed and acknowledged.—Code, § 460; Bolling v. Smith, at present term; Pugh v. Youngblood, 69 Ala. 296; Lassiter v. Lee, 68 Ala. 287; Jones v. Randle, Ib. 258.

There is no contention that the tax-deeds were valid, or such as to have conveyed a good and perfect title to the premises, but they are relied on only to give color of title. That they were admissible for this purpose, is not denied ; for the rule is settled, that a tax-deed, though invalid, may nevertheless constitute color of title, and thus operate to define the boundaries of an actual possession by an occupant.—Stovall v. Fowler, 72 Ala. 77; Pugh v. Youngblood, supra.

It is shown, conceding that this is necessary, that the possession of the defendant was adverse, open, and notorious in its character ; and this would be sufficient to bar the action, provided it was continuous or unbroken for the requisite five years. The premises iri controversy were suburban lots, and, at the time defendant purchased them, were open and uninclosed, and without improvements on them. They were suitable for cultivation, however, and the possession of the defendant was confined to a cultivation by his tenants, who raised crops on the lots annually from year to year. These tenants constructed an inferior fence around the lots, which seems to have been sufficient for their purposes; but, during one or more years, it became dilapidated, and was partially destroyed between the time for gathering the crops and the ensuing spring, when it was again renewed.

The proposition involved in the contention of the appellant is, in substance, that the temporary destruction of the fence broke the continuity of the defendant’s possession, so as to destroy its adverse character, although there may have been no intention or purpose of abandonment, but an accompanying intention to renew the inclosure when necessity should require it. In other words, that permitting a fence to be destroyed, or to get out of repair, for a period of the year when it is not needed to protect the crops, per se constitutes abandonment. This is clearly not the law.

A fence or inclosure is. not an essential element of adverse possession, but is only one of many acts indicative of possession and claim of ownership. It is often very important, it is true, to mark with precision the limits or boundaries of a possession, especially when the occupant is without color of title, which would answer this purpose. In a section of the country, for example, where fence-laws have been abolished, the absence of an inclosure would weigh but little. So, where a river constitutes a boundary line. The reason is, that it would then be no index of an intention to abandon. It has often been decided in this country, that the possession of an occupant may be adverse without either inclosure or improvements. Bell v. Denson, 56 Ala. 444; Ellicott v. Pearl, 10 Pet. (U. S.) 441; Leeper v. Baker, 68 Mo. 400; Angell on Limitations, § 400; Real Prop. Trials, (Malone) §§ 277-8. And color of title is sometimes said to be á substitute for a substantial and permanent fence around the premises claimed.—Trial of Titles to Land (Sedg. & Wait), § 767; Watson v. Mancill, 76 Ala. 600.

As said by this court in Bell v. Denson, supra, “the possession must be by acts suitable to the land.” In Clement v. Perry, 34 Iowa, 564, the settled rule is declared to be, that “ where a person claiming land exercises acts of ownership of it, by the use of it for the purposes to which it is adapted,” he is in such actual occupancy of it as will bar a recovery after the lapse of the statutory time — that “ such possession is as actual as that by inclosure.” When land is suitable for farming purposes only, a sufficient actual adverse possession may be obtained by using it for this purpose, openly and notoriously, without break from year to year, although the cultivation be only during the season customary for raising crops. A person must be blind, or else very negligent indeed, who would fail to notice the open cultivation of his land from year to year, the growing of crops upon them, and the gathering and taking of them away, to say nothing of the lasting marks of this industry left permanently behind. A fortiori is this true with color of title.

- It is plain that, when once an adverse possession has been established, it can be broken only in one of three ways: (1) by the act of the real owner ; (2) by the intrusion of a stranger ; (3) by the abandonment of the premises by the occupant himself. Whether any act constitute an abandonment, especially if it be equivocal in its nature, is necessarily a question of fact determinable by intention — not a secret or clandestine intentiou, but ooe communicated and made manifest by cotemporaneous circumstances, or subsequent acts. It was on this principle that it was held by the Supreme Court of Missouri, that “ every failure to cultivate a field for a season, or a delay in repairing the fence when destroyed, will not be held to be an abandonment, if a sufficient reason appears.”—Trial of Titles to Land (S. & W.) §§ 737-744; Crispen v. Hannavan, 50 Mo. 550; Draper v. Short, 25 Mo. 196.

The charges of the court touching this subject were free from error.

The first charge requested by the appellant was properly refused, It iguored all consideration of*the rule, that although a witness may testify corruptly, his testimony should nevertheless be received as credible, so far as it may be satisfactorily corroborated by other evidence.

The second charge was misleading. Conceding that the plaintiff: was entitled to recover one-tenth of lot number 7, and that the adverse possession as to this was insufficient, the defense may nevertheless have been good as to the remaining nine-tenths of the lot, included in the defendant’s tax-deeds.

We discover no error in any of the rulings of the court, and the judgment is affirmed.