Trufant v. White & Co. , 99 Ala. 526 ( 1892 )

McCLELLAN, J.

-The only defense made to this action is that of adverse possession; it is not controverted that plaintiffs have a perfect chain of muniments of title to the land. The possession of the defendants and of their immediate vendor, Mrs. McFarland, was for a less period than ten years before suit brought. Hence the defense can not be made out without tacking Mrs. McFarland’s possession on to that of McAlester, from whom she purchased, which, of course, must have been adverse to the plaintiffs, and continued, impressed with that character, to the sale to and putting in possession of said vendee, or without proof that before such sale McAlester’s adverse possession had been continued for the statutory period and thus ripened into a perfect title in him. So, there were really but two questions in the case, the resolution' of either one of which in defendants’ favor entitled them to a verdict and judgment. Namely : First. Was McAlester’s possession at the time of the sale to Mrs. McFarland, adverse to the plaintiffs, and had it at that date been adverse for a length of time which, added to the possession of Mrs. McFarland and defendants, make out the statutory period, the adverse character of the possession subsequent to McAlester’s being confessed ? And, second, If McAlester’s possession was not at that time adverse, had he for any prior period of ten years had such adverse possession as vested him with the legal title, which, in the absence of a conveyance by him or a subsequent holding by him as tenant or agent for the plaintiffs, or in subserviency to them, for the statutory period, remained and was in him when he sold and conveyed to Mrs. McFarland?

The evidence for the defendants tended to show that Mc-Alester went into possession of the land in 1851, and from that time till his sale of it to Mrs. McFarland, he continued in the possession, exercising acts of ownership over it, treating and using it as if it belonged to him and claiming to own it. On the other hand, certain letters written by him in April, May and July, 1868, to the executors of plaintiffs’ ancestor were, together with a letter in reply to one of them, written by one of the executors in May, 1868, introduced by the plaintiffs, and tended to show that at that time, that is at least from April 3d to July 17th, 1868, McAlester recognized the title of plaintiffs as paramount and held permissively under it. We say these letters tended to show the subserviency of McAlester’s possession, because whether they did show it or not was a question for the jury. They amount merely to written admissions of fact for the consideration of the triers of the facts : they are not such writings as the trial court should have interpreted and declared the effect of as matter of law. These admissions were for the consideration of the jury, in two respects. On the one hand, they went to show that MeAlester’s possession from 1851 to 1868, though having all the visible indicia incident to ownership, was not in truth held under a claim of right in himself, and hence was not adverse to the title of the plaintiffs. Yiewed in this connection, it was open to the jury to find either that McAlester’s possession had not, up to that time, been of a character' to vest the legal title in him, or that it had been adverse and, therefore, that he had a perfect title when the letters were written. If they reached the latter conclusion, that title continued in McAlester and passed by his conveyance through Mrs. McFarland into the defendants, unless from 1868 on he held possession for a period of ten years as the tenant at will, or agent, or otherwise permissively, under the plaintiffs, the effect of which would be to revest the title in them.—Allen v. Mansfield, 82 Mo. 688; Unger v. Mooney, 49 Am. Rep. 100; Echols v. Hubbard, 90 Ala. 309; Hoffman v. White, 90 Ala. 354; Atkinson v. Patterson, 46 Vt. 750; Williams v. Pott, L. R. 12 Eq. 149.

In determining whether the possession of McAlester, after July, 1868, was that of the plaintiffs, in the sense necessary to divest out of the former and invest in the latter the title acquired by McAlester’s possession prior to April 3d, 1868, if they found that such prior possession was of a character and duration to ripen title, in him, it was competent for them to look at the evidence introduced by defendants with reference to the payment of taxes on the land as if it were his own by McAlester, and to the fact that he scheduled this land among his assets in the bankruptcy proceeding and claimed it therein as exempted to him; and it follows of course that the court did not err in overruling plaintiffs’ objection to this evidence. The other aspect in which the admissions contained in the letters were for the consideration of the jury was this : If they found that McAlester’s possession, prior to April 3d, 1868, had not for a period of ten years been adverse to plaintiffs, it then became a matter of controlling importance, of course, to determine whether his subsequent possession was adverse, either of itself for the statutory period, or for a sufficient length of time next before .the inception of Mrs. McFarland’s possession, as with the term of her holding and that -of the defendants would amount to ten years. The bankrujDtcy proceedings and the payment of taxes, we may remark incidentally, were also competent in this connection as apart of the proof necessary to impress this subsequent possession with an adverse character. But it was only a part. If, in this event, the jury found from the correspondence between McAlester and Hanna that the former’s possession at that time was held in subordination to and in recognition of the title of plaintiffs, or permissively under them, they could not find that McAlester’s subsequent possession was adverse to the plaintiffs without proof — evidence satisfactory to them — that it was held in hostility to plaintiffs’ title, and that, the fact of such hostility, involving a repudiation of the permissive or subordinate character of the possession as it existed in 1868, was brought home to the plaintiffs ten years before this suit was instituted. Being in the possession as the tenant or agent of plaintiffs, or holding in any way for them and in recognition of their title in July, 1868, they had a right to assume that the character then impressed on the possession by these facts continued so long as it was not disavowed or repudiated, and the disavowal or repudiation brought to their knowledge; and their failure to assert their title under these circumstances is to be ascribed to their continued willingness that McAlester should hold for them and in their right, and not to their acquiescence in his wrongful disseizin, since knowledge is always an essential element in acquiescence, and knowledge of a wrong must always be shown before a party can be said to have lost his right to redress it by delay in its assertion. Where there are no relations between the owner and the party in possession, nothing upon which the possession can be referred to the owner’s right, he is presumed to know of its wrongful character, knowing, as he must, of the fact of possession. But where a relation does exist upon which the possession is referable to the title, the holder of that title is justified in assuming that the possession is subordinate thereto, and held in recognition thereof, until he knows to the contrary. No kind or degree of actual hostility will of itself convert such a permissive into an adverse possession. No sort of claim of ownership on the part of the party in possession will of itself have this effect. And while it may be open to the jury in some cases to find from the circumstances of the possession that the owner had notice of its hostile and exclusive character, no exclusiveness of possession, no hostility, no claim of right antagonistic to the title will necessarily in any case take the place of direct proof of knowledge on the part of the owner that the possession is no longer held in subserviency to him. At most in any case, the circumstances of hostility, exclusiveness and claim of right are only for the jury to consider as tending to show knowledge on the part of the owner, the argument being that the circumstances of the possession were such as that he must have known them, and from them, that the possession was no longer held under him and in recognition of his title.—Woodstock Iron Co. v. Roberts, 87 Ala. 436; Burrus v. Meadors, 90 Ala. 140; Baucum v. George, 65 Ala. 259: E. T. V. & G. R. R. Co. v. Davis. 91 Ala. 619; Bernstein v. Humes, 78 Ala. 134; DeJarnette v. McDaniel, 93 Ala. 215.

When brought to the touch of the foregoing views charges 2, 3 and 4 given for the defendants are affimativelybad. They each require the jury to find for the defendants if they should believe that McAlester’s possession was open, notorious and held under a claim of right in himself, though the jury might also believe that the plaintiffs had no knowledge whatever that he asserted any claim to the land except under and in subserviency to their title.

Charge 11 given for defendants was misleading, and should not have been given. Of course, if McAlester was in the open, notorious and continuous adverse possession for ten years after the last recognition of plaintiff’s title by the letter of July 17, 1868, he had title, but the jury would probably have understood the wordacfoerse, as used in this charge, to mean a claim of ownership in hostility to the plaintiffs, when such claim, without proof of plaintiffs’ knowledge of it, would not render the possession adverse to them.

Charges 6 and 7 given for defendants are mere arguments. The court was under no duty to give them, but its action in so doing would not work a reversal of the case.

Charge 12 was misleading: indeed it was invasive of the province of the jury. If the jury had found that McAlester’s possession between 1851 and April, 1868, had vested title in him, it would not necessarily follow that this title remained in him and passed to Mrs. McFarland, and from her to the defendants, as the charge in effect declares. As we have seen, it was open to the jury to find that, if McAlester really had title in 1868, it had revested in the plaintiffs before the deed to Mrs. McFarland was executed, through, ten years continuous possession by McAlester subsequent to July 17, 1868, under and, in subordination to the plaintiffs.

Charges 5 and 15 given for defendants are unobjectionable, except that the latter is argumentative.

Reversed and remanded.