Davidson v. Alabama Iron & Steel Co. , 109 Ala. 383 ( 1895 )

HARALSON, J.

Under repeated decisions of this court, the mere signature of said Lucinda Davidson to said mortgage or deed of trust, as shown by the facts of this case, did riot make it her deed. — Sheldon v. Carter, 90 Ala. 383; Fite v. Kennamer, Ib. 472. The acknowledgment of tne paper, as certified by the justice of the peace, was also fatally defective. — Merritt v. Phoenix, 48 Ala. 87; Roney v, Moss, 76 Ala. 491. The court excluded this mortgage as a muniment of the legal title, but admitted it as color of title under the claim of adverse possession. The subsequent deeds of those under or from whom the defendant company claims tide can be considered as of no higher value. The right of the defendant in the lands sued for, if any, rests alone upon its claim' of adverse possession under clor of title, for a period sufficient to bar the legal title of the plaintiffs, which title antedates any claim of right on the part of defendant, or those under whom it claims.

The burden of proof being upon the defendant, it was incumbent on it to show, that the plaintiff’s title was barred by its own continued adverse possession of the premises, for a period of at least ten years before suit brought, or by those under whom it claims, whose possession could be held to be continuous. — Eureka Co. v. Norment, 104 Ala. 625; Riggs v. Fuller, 54 Ala. 141.

The evidence fails to show that Harrison & Gregory, the alleged purchasers and owners, — from whom defendant’s claim must arise, if from any one, — ever had the actual possession of the lands. It is. inferable that they never saw them in their lives. Nor was it shown that their vendee. Brock, was ever on. or had any .possession of, the premises. The first person found in actual possession of them was one Henderson, to whom Brock sold them in I860 or 1861. Henderson’s claim is shown to have been adverse. He died in 1862, but his widow remained on the premises until 1867 or 1868, claiming the lands as her husband’s. This would make a period of seven years. But, of this period, the time elapsing from the 11th January, 1861, to the 21st of September, 1865, by the terms of the ordinance -of the convention of the State, adopted 21st September, 1865, cannot be estimated — Eureka Company v. Norment, supra. Deducting this time, and not more of this period remained than from two to threeyears. Weed succeeded to the possession of the Hendersons, without a. break, and continued to hold until the 20th May, 1870, —the date of his sale to Lewis & Harrison, — a period of from two to three years, which, added to-the Henderson possession, would make a term of from four to six years, at most. The evidence shows that Lewis & Harrison, the vendees of Weed, were never in the occupancy or possession of the lands, but that they remained, unoccupied by any one, until April, 1883, when Lewis & Harrison conveyed to Thos. Peters and Thos. Krutz, with the single exception that a strolling, loose woman, by the name of Honeycut, in 1874, of her own will, and. without the knowledge or consent of any one. went into, the house on the land built by Henderson and remained in occupancy of it, and the garden attached, from four to six months,- according to the recollection of one of the witnesses, and from twelve to fourteen, according to that of another. She abandoned, the house having been destroyed by fire, and no one was seen on the lands afterwards, until 1883.

Admitting the possession of Peters and Harrison and defendant under them to have been adverse and continuous, till tho commencement of this suit, on the 1st of October, 1890, still such possession ran for a period of less than seven and.a half years. It thus appears from the evidence, which is without conflict, that at no timo since defendant’s claim is said to b/eve accrued, has there been a period of ten years when these lands were in the adverse possession of any claimant, or any number of claimants whose possessions could be legally tacked as continuous. The defendant failed to make good the defense set up, and the general charge in favor of the plaintiffs, as requested, should have been given.

It is unnecessary to consider any other questions raised in the case.

Reversed and remanded,