Parks v. Barnett , 104 Ala. 438 ( 1893 )

HARALSON, J. —

1. In the absence of children or next of kin, on the death of Wm. Hart, intestate, leaving a wife, his whole estate went, under the statute, to her. Code, § 1915, subdiv. 5.

2. The evidence is without conflict, that the lot sued for, at the time of its attempted conveyance by said Hart and wife to the defendant, Ooltart, was their homestead in their actual occupancy and possession, as such, and had been for many years before. Their deed was without the acknowledgment of the wife, as required by section 2508 of the Code, to make a valid conveyance by the husband of the homestead. By the repeated decisions of this court, as well as by the terms of the statute itself, such a conveyance is void. It is said of such a deed, that it is a nullity to all intents and purposes, and confers no rights, present or prospective, is totally insufficient as a muniment of title to support an action of ejectment, and is incapable of passing any estate or interest whatever in the homestead. — McGuire v. VanPelt, 55 Ala. 344; Miller v. Marx, Ib. 338; Balkum v. Wood, 58 Ala. 642; Halso v. Seawright, 65 Ala. 431; Slaughter v. McBride, 69 Ala. 510 ; Hood v. Powell, 73 Ala. 171; Alford v. Lehman, 76 Ala. 526 ; Strauss v. Harrison, 79 Ala. 324; Smith v. Pearce, 85 Ala. 266 ; Cox v. Holcomb, 87 Ala. 589.

We have also held, more than once, that such a conveyance, acknowledged by the wife after the death of the husband, with certificate thereof in proper form, does not defeat or affect the title of his heirs. — Richardson v. Woodstock Iron Co., 90 Ala. 266 ; s. c. 94 Ala. 629; Hodges v. Winston, 95 Ala. 514.

3. So far, then, as this deed from said Hart to defendant is concerned, the title to the lot'remained in Wm. Hart, as though it had never been signed by him and his wife. On his death, intestate and without next of kin, his wife had the right to the property and the capacity to convey the same to the plaintiff, as she did by her deed of 9th of April, 1887, unaffected by her previous inoperative and void deed to defendant.

Before that time, being the owners of the lot, with title in themselves and in the actual occupancy, it is impossible to conceive of Hart or his wife being the tenant of the defendant, who had no title. Their possession under such circumstances was not the defendant’s or that of any one else, except their own. There is no pretense that defendant was ever in the actual possession of said lot, until Teney died in 1893, when her agent went on the premises and claimed it for her, but the Harts had remained in the continuous, unbroken actual possession until both of them died. And Teney, continuing in unbroken possession, after the death of her husband, certainly held it adversely to defendant, as is evidenced by the fact, that, claiming it as her own, and in the assertion of such claim, she sold and conveyed it to plaintiff in April, 1887. If it be said, therefore, that plaintiff’s deed is void, because made by Teney, when out of possession, the contention has no basis in fact on which to stand. ‘ ‘To avoid a deed made by one out of possession, it is enough if there be one in adverse, possession, exercising acts of ownership, and claiming to be rightfully in possession. Color of title is not necessary. Possession, to have this effect, however, must be-actual not constructive.” On no principle, can it be said, that Teney’s deed to plaintiff was void because made by her when she was not, but defendant was, in the actual possession. — Bernstein v. Humes, 71 Ala. 260; Alexander v. Savage, 90 Ala. 385.

4. Nor was the void, inoperative deed to defendant from Hart and wife admissible in evidence to show color of title in defendant, on which tobase a claim of title founded on ten years adverse possession. Any alleged possession of the defendant to have the effect to bar title of the legal owner, must have been hostile or adverse, actual, visible, notorious and continuous, under a claim or color of title ; and no right can spring from mere claim or color of title, unaccompanied by actual possession. In the absence of such an adverse possession as falls'within this definition, there is no room for the assertion of title by adverse possession, and the question of superior right of possession between the parties becomes, at law, one of superior legal title. — Bernstein v. Humes, 71 Ala. 260; Dothard v. Denson, 75 Ala. 482; Hughes v. Anderson, 79 Ala. 214; Black v. Pratt C. & C. Co., 85 Ala. 504; Echols v. Hubbard, 90 Ala. 315 ; Alexander v. Savage, 90 Ala. 385.

5. The plaintiff testified, that he had no knowledge or information of the claim of defendant to the property when he bought from Teney Hart. The fact that defendant’s deed was recorded, when plaintiff acquired title, was a matter of no benefit to defendant, for even actual knowledge of its existence, since it was void and a nullity for all purposes, could not operate to prevent the plaintiff from purchasing the lot.

The defendant having failed to show adverse possession for the length of time that will support her claim against the plaintiff’s title, and the plaintiff having shown a legal title older than that of defendant, both parties claiming from the same source, it follows, her title must give way to the plaintiff’s.

The plaintiff was entitled to the general charge as requested, and the court erred in refusing to give it.

Reversed and remanded.