Bozeman v. Bozeman , 82 Ala. 389 ( 1886 )

SOMERYILLE, J.

— We find many errors in this record, for which the judgment of the Probate Court, ordering the sale of the lands for distribution among the heirs of the de-' cedent, must necessarily be reversed.

1. In the first place, the petition fails to state the place of residence of three of the heirs of the decedent’s estate; viz., Rebecca, Martha, and Jane Garrett; or to state whether they were under twenty-one years of age, or were married women. This was required by section 2450 of .the present Code (1876), and a failure to conform to these requirements is a reversible error.

2. The order of sale, made by tbe probate judge, fails to specify the place of sale, and no power is vested by law in the administrator to select such place. ■ This was required by section 2462 of the Code (1876), and the defect pointed out is also a reversible error. — Brown v. Brown, 41 Ala. 215.

3. There are other assignments of errors in the record, but we need consider only one of these',.which seems likely to prove fatal to the application upon another trial. It is our opinion, that where one of several heirs has been in possession of a decedent’s lands, or. .other property, for twenty years, or more, holding adversely, notoriously, and exclusively, by independent claim of right in himself, no application can be made by an administrator or executor for the sale of such lands for distribution, under the pro1 visions of section 2450 et seq., of the Code of 1876. It is true that the statute does not, in words, fix any such, limitation. But it is not to be supposed that rights of this kind are to be exercised without ■ limitation of time. If twenty years does not bar such an application, neither would a hundred, or a thousand years do so. We have, in this State, by a long series of decisions, established the rule, that the lapse of twenty years will operate as a positive bar to the enforcement of every character of legal right in the courts of. this State, unless there has been, within that period of time, a recognition of admission of some material fact on which the right in question may be adjudged to rest, and which, therefore, keeps it alive and in force. The, rule is one of presumption, based on the broad doctrine of prescription, and is not to be rebutted. It has in view the peaee and security of society, and is applicable, as often held, to all human transactions, which are open to judicial investigation. The doctrine is broader and more comprehensive than a mere statute of limitations, although based on analogous principles, as we have above said, of repose to society. Our past decisions fully authorize its application to such a case as this.— Garrett v. Garrett, 69 Ala. 429; McArthur v. Carrie, 32 Ala. 75; Harrison v. Heflin, 54 Ala. 552; Greenlees v. Greenlees, 62 Ala. 330; Baker v. Prewitt, 64 Ala. 551; Matthews v. McDade, 72 Ala. 377.

The appellants proposed to prove that Josiah Bozeman, Jr., under whom they claim, was in the adverse possession of the land in controversy, from some time in 1863 to the time of his death in October, 1884, claiming it as his own, and that such possession was exclusive, and evidenced by notorious acts of ownership. The decedent, Josiah Bozeman, Sr., had died as far as 1841, or about forty-five years prior to the filing of the present application. The depositions offered by appellants in support of these facts should have been admitted in evidence. They tended to establish a state of things which rendered the right asserted by the administrator dormant, under the influence of the doctrine of twenty years prescription.

The judgment is reversed, and the cause remanded.