Doe ex dem. Hooper v. Clayton , 81 Ala. 391 ( 1886 )

STONE, C. J.

— The question of gravest importance in this case arises on the admissibility of the tax deed in evidenee. That deed was put in evidence, not as furnishing in itself, or by its unaided force, a complete title to the premises. Its purpose was to show color of title, the extent of the possession claimed, and in what right the defendant entered, and claimed the right to enter and hold possession. Under the rulings in Pugh v. Youngblood, 69 Ala. 296, and Stovall v. Fowler, 72 Ala. 77, we held that the deed was properly admitted, and that, when executed and recorded, it was sufficient color of title to constitute a possession taken and held under it independent and adverse. — Bolling v. Smith, 79 Ala. 535; Hughes v. Anderson, 79 Ala. 209.

Ownership and possession of land are each facts, to be proved by evidence as other facts are proved. Neither can be proved by general notoriety, nor by reputation.

Defendants were allowed to prove, against the objection and exception of plaintiff, that Lyon, under whom defendants claim, s’tated in 1871, while on the land, and exercising acts of ownership over it, “that he, Lyon, had bought said lands at tax sale.” This was error. — Daffron v. Crump, 69 Ala. 77, which collects the authorities.

The testimony relating to Hooper’s visit to the lands after Lyon had asserted possession, and shortly before the suit was brought, taken in its extremest tension, was not such a retaking of possession as could break the continuity of the possession the testimony tends to show the defendants had. — Pearce v. Clements, 73 Ala. 256 ; Clements v. Hays, 76 Ala. 280 ; Crosby v. Pridgen, ib. 385.

Charge No. 12, asked by plaintiff, ignores entirely all testimony introduced tending to show that Lyon took actual, personal possession; and that he and those claiming in his right had and held a possession beyond and independent of those persons whom, it is contended, he found in possession as tenants under Hooper. We are not prepared to gainsay the proposition, that, if the sole possession which Lyon, and those claiming in his right, acquired, consisted in his inducing tenants he found in possession under Hooper, to acknowledge him as their landlord, and this, without first dissolving their former relation of landlord and tenant in some legal mode, a possession acquired and held solely in this' way, without more, can not become adverse to Hooper. Farris v. Houston, 74 Ala. 162 ; Same v. Same, 78 Ala. 250. In what we have said, it is not our intention to assert that a possession taken solely by having Hooper’s tenants attorn to him, Lyon, and holding under him, could, under no circumstances become Lyon’s holding adverse to Hooper. If Hooper was notified of such renunciation and change of tenancy, or, if it was so open and notorious as to give constructive notice of its occurrence, this would furnish a sufficient beginning point for an adverse holding in Lyon. This inquiry the charge ignores. — Lipscomb v. McClellan, 72 Ala. 151; Dothard v. Denson, ib. 541; Pillotson v. Kennedy, 5 Ala. 407. And, as we have said, it also ignores all testimony tending to show Lyon acquired possession personally, or through other persons not so hampered, and was_ rightly refused on that account.

Charge 13, construed in connection with the testimony, was rightly refused. As we have said above, there is no proof of re-entry by Hooper, sufficient to break the continuity of an adverse holding, if such adverse holding be found to exist.

Charges 14 and 15 fall under the rule declared as to charge 13, and were rightly refused.

Charge 19 puts, as one of its hypotheses, that there maybe difficulty and uncertainty in locating 270 acres in the N. E. corner of a section of land — such part being sold for the taxes of the whole section. This is a mistake. Such fraction the law both declares and presumes to be a square of four equal sides, carved out of the North East corner. A surveyor can locate it.— Wilkinson v. Roper, 74 Ala. 140. This is itself enough to justify the refusal of the charge. This charge, however, has other defects. One of its clauses asserts that “ if the jury believe from the evidence that only 270 acres of the land in controversy was sold by the tax collector of the county in the year 1870, then the defendant can not in any event resist a recovery except as to the said 270 acres.” One of the controverted questions in this case was, whether the plaintiff had' shown sufficient title or anterior possession to maintain the action, even if defendant had shown no title whatever. — Hines v. Chancey, 47 Ala. 637; 3 Brick. Dig. 325, § 38. The charge was correctly refused on this account also.

There is a further difficulty. The tax collector’s certificate of purchase given to Lyon, and the deed of the judge of probate afterwards issued to him, each describes the land as the entire section 12 — the whole of the lands sued for in this action. The statute under which the lands were sold, approved December 31, 1868, Sess. Acts, 1868, page 329, § 70, required the judge of probate “ to attend all sales of real property for taxes made by the collector, and make a record thereof in a book to be kept by him for that purpose, therein describing the several parcels of real property on which the taxes and costs were paid by the purchaser, * * stating in separate columns, * * * how much and what part of each tract was sold, and date of sale.” The entry in relation to this sale, shown in the probate judge’s book of sales, is as follows: “Part sold, N. E. corner; acres, 270; date of sale, March 9, 1870 ; purchaser, A. B. Lyon; amount paid, $64.90.” And the tax collector was required to keep a similar book of sales. All these papers or records, except the tax collector’s book of sales, were put in evidence in this case. The probate judge’s book of sales, his deed to the purchaser, and the tax collector’s certificate of purchase given to Lyon, were each and all official acts, and import verity. . They differ in that the book of sales shows 270 acres sold, while the other papers show the whole section, or 640 acres sold. Which is right, and how is the issue to be determined ? The evidence being entirely documentary, not to mention the fact that it consists entirely of official acts, it is manifest it did not and cannot present an issue for decision by the jury. — Bernstein v. Humes, 60 Ala. 582 ; Claghorn v. Lingo, 62 Ala. 230 ; Jones v. Pullen, 66 Ala. 306. The court did not err in refusing to give charge 19.

The delendants asked twenty-two separate charges, each of which was given, and there was a separate exception reserved to the giving of each. We consider it unnecessary to notice these separate charges in detail. All of them are free from error, unless there is something in those to. be noticed presently. Charges 10,11,12,17 and 22 relate to the same subject, and may be considered together. They raise the inquiry, whether the record of the tax sale kept by the judge of probate, when it differs in the quantity sold from the tax collector’s certificate of purchase and from the deed afterwards made to the purchaser, dominates the latter, or is dominated by it.

We need not and will not decide in this case, whether if the tax collector in fact sold only a part of the land, yet title was made to the purchaser for the whole, there is any mode by which the deed can be corrected. That question is not before us. We have to deal with the question as it was presented in the court below. So presented, we feel forced to hold, that under our statutes and the rulings upon them, the language of the deed must determine the question. Acts of Dec. 31, 1868, Sess. Acts 1868, p. 297, §§ 87, 89, 92; Code of 1876, §§ 458, 460, 461, 464. — Jones v. Randle 68 Ala. 258; Bolling v. Smith, 79 Ala. 535.

What we have said last above we confine to cases like the present, where the deed is offered, not as a link in a chain of title, sufficient in and of itself, capable of resisting all assaults. We will neither declare nor intimate what would be our ruling, if the defense was rested solely on the sufficiency of title, unaided by the statute of limitations. What we do decide is, that where the deed was offered, as was dona in this case, as mere color of title — as evidence of the character in which defendant entered and holds, and of the extent of his asserted possession, then the inquiry behind the deed becomes immaterial.

On the single question noted above,

Reversed and remanded.