Bonham v. Loeb , 107 Ala. 604 ( 1894 )

HARALSON, J.

The plaintiff makes no pretense of title to the property, for a'trespass on which by defendant she complains, except such as she claims by ten years adverse holding; nor does she show any actual occupancy or possession of the lot at the time of the alleged trespass. The only pretense of possession by the plaintiff, was that her grandfather, William Peacock, under whom she claims title, and who died about sixty years ago, was buried in the grave-yard, — about twenty-five feet square,— on the lot described in the complaint, and that her husband and three of her children were also buried there. It was shown, that the burying place of these dead, had gone into much dilapidation, and for thirty years, plaintiff had not lived in Montgomery ; that as long as she lived here, she visited the grave-yard frequently and kept it in very good condition, and after she moved away, she left it in charge of Mrs. Burk, who testified, that she went to the spot frequently, and gave it the best attention she could ; that more than ten years ago, after Moses Bros, bought the property, and in a conversation with one of the firm, he told plaintiff that “the grave-yard would never be troubled.” It was not shown, that she ever laid claim to the title or possession of the property, from defendant or any one under whom he holds, or that they or any of them ever had any notice of an adverse claim or holding by plaintiff. On the other side, it was shown, that defendant and those under whom he claims, by regular chain of paper-title, have had title to the property, for over thirty years, and in none of the mesne conveyances, from first to last, was Yhere any reservation of title or possession to any one, >of the burial place referred to, bat the title came to defendant in fee of the entire property, without the exclusion of any part of it. It was further disclosed .by the evidence, that there were other persons who where joint tenants of the premises, in the sense that plaintiff was a tenant.

In this case, as appears, the plaintiff having shown no actual possession, her right .of recovery is made to depend upon her title, if any, which would draw to it constructive possession. It is well settled, that to maintain the action of trespass, it is necessary that the plaintiff should have had actual or constructive possession. If a plaintiff has title, it draws to it the possession, and he is by construction, deemed to have had possession. In the absence of actual possession by him, whether he ever had constructive possession, will depend upon the question of title. — Shipman v. Baxter, 21 Ala. 456; Ledbetter v. Blassingame, 31 Ala. 496 ; McInerny v. Irwin, 90 Ala. 276.

The attempt on the part of plaintiff to prove title by adverse possession of ten years, was abortive. No such acts of control and possession, such as she sets up, can ever amount to adverse possession. — Parks v. Barnett, 104 Ala. 438; Ponder v. Cheaves, Ib. 307; Eureka Co. v. Norment, Ib. 625; s. c. 98 Ala. 181.

The plaintiff took issue on defendant’s second plea, every fact in which was substantially proved. This would have justified the general charge for defendant.— Taylor v. Smith, 104 Ala. 537; Allison v. Little, 93 Ala. 150; Lewis v. Simon, 101 Ala. 546.

We will not stop to consider the rulings of the court on the exclusion of evidence constituting the only two grounds of the assignments of error. We have not been shown that there was error in these rulings, but, even if there were, it is manifest, from what has been said, and from more that might be added, that plaintiff can not recover, in any event, and it is unnecessary, therefore, to review these ruling, leading to the non-suit.— Harmon v. Siler, 99 Ala. 306.

Affirmed.