Long v. Parmer , 81 Ala. 384 ( 1886 )

SOMERVILLE, J.

— The lands in controversy are shown to have been held by the defendant, and those under whom he claims, under a claim of ownership and title evidenced by ordinary deeds of conveyance, since January, 1856. This was presumptively an adverse ownership hostile to the world. The possession under these deeds is shown to have been open, notorious, and exclusive, from that time up to October the tenth, 1885, the day of bringing this suit, or for a period of time within a few months of reaching thirty years.

Admitting that the order of sale would have been void for want of jurisdiction in the probate court which granted it, if it had been assailed within twenty years from the date of making it, which was in November, 1854, and admitting further, that DuBose, as Bush’s executor, had disabled himself from suing by making the alleged void sale on the principle of estoppel, so that the possession of the defendant would not be protected by the statute of limitations, which is ten years in actions of ejectment like the present, nevertheless it does not follow that the plaintiff would be entitled to recover in this suit. The lapse of tzeenty years from the time of the sale and conveyance by DuBose to Crews, which was on January 24th, 1856, without suit against him by any one, and without any recognition, or admission within that period by him or his sub-vendee, of a title or interest in any one else, operated as a positive bar to any action against the defendant, upon the doctrine of prescription. And, the right of action itself existing, the want of a proper party to sue, by reason of the executor’s disability-, did not suspend the running of this bar, or overturn the presumption which follows from it — that the sale by the executor was regular, and the title of the defendant perfected by regular conveyance to the original vendee from whom he purchased. After the lapse of twenty years, the courts will decline to investigate or inquire into the validity of such titles, but will make all reasonable presumptions necessary to uphold them. The only fact open to inquiry, in -such ' cases, is the character of defendant’s possession, either in its original acquisition, or in its continued use, as being, on the one hand, permissive and in subordination, or, on the other, hostile and adverse. — McArthur v. Carrie, 32 Ala. 88; Harrison v. Heflin, 54 Ala. 552, 563 ; Garrett v. Garrett, 69 Ala. 429 ; Matthews v. McDade, 72 Ala. 377; Doe v. Ladd, 77 Ala. 223 ; Solomon v. Solomon, present term.

The charge of the court instructing the jury to find for defendant, if they believed the evidence, was free from error, and the judgment is affirmed.