Goodson v. Brothers , 111 Ala. 589 ( 1895 )

McOLELLAN, J.

Defendant’s demand for a struck, jury was made after the parties had announced themselves ready for trial, and a jury to try the case had been puffin the box and accepted by the plaintiff. Under these circumstances, the court was not bound to grant, and did riot err in refusing, the demand. — McArthur v. Carrie's Admr., 32 Ala. 75.

The plaintiff claimed title to the land through adverse possession of ten years or more, under claim of ownership and color of paper title. The elements of such a title are (1) such possession as the land reasonably admits of; (2) openness and notoriety and exclusiveness of possession; (3) hostility toward everybody else in respect of the possession; (4) holding the possession under a claim of right or claim or color of title ; and (5) continuity for the statutory period of ten years. To the constitution of the first element — such possession as the land reasonably admits of — it is not necessary that land which is uninclosod and uncultivated should be inclosed and cultivated merely because it was capable of inclosure and cultivation ; the possession is gauged by the actual state of the land and not with reference to its capability of being changed into another state which would reasonably admit of a different character of possession. Openness and notoriety and exclusiveness of possession are shown by such acts in respect of the land in its condition at the time as comport with ownership— such acts as would ordinarily be performed by the true owner in appropriating the land or its avails to his own use and in preventing others from the use of it as far as reasonably practicable; and near akin to these are the acts evidencing the element of hostility toward all the world. A claim of right or ownership may rest upon the naked fact shown by parol that the party has purchased the land ; and a claim or color of'title may be shown by any paper purporting to convey the land or the right to its possession into the party asserting adverse possession, however, and for whatever reason, such paper might be lacking in the , essentials of a muniment of title, provided the party claims under it in good faith. These principles determine the 4th, 5th, 6th, 7th, 9th, 11th and 12th assignments of error against the appellant.

It is not competent to show by reputation and general understanding in the neighborhood that a plaintiff in this class of actions owned or had title to the land. The court, therefore, erred in allowing the plaintiff and other witnesses to testify that “the land wras generally known . and considered as belonging to the plaintiff,” that “it was understood and known in the community as plaintiff’s land,” and the like. — Benje v. Creagh’s Admr., 21. Ala. 151; Woodstock Iron Co. v. Roberts, 87 Ala. 436, 442; Ross v. Goodwin, 88 Ala. 390.

The court also erred in allowing the witness W. F. Higgins to testify that the land was sold at sheriff’s sale as plaintiff’s land. There was necessarily better evidence of this fact. — Bell v. Denson, 56 Ala. 444.

In view of the uncertainty as to whether the bill of exceptions sets out or purports to set out ¿ill the evidence, we shall enter upon no consideration of the propriety of the court’s action in refusing the affirmative charge requested by the defendants.

Charge 10 requested by defendants, ‘ ‘that general reputation as to who owns the land, is not evidence to show plaintiff’s title by adverse possession,” should, on the considerations adverted to above, have been given.

A possession to be adverse, need not be so open, continuous and pQtqpious as necessarily to be seen and known by the owner if he should casually go upon the land. Charge No. 11 requested by defendant, was, therefore, properly refused.

We find no error in the action of the court in giving charge 3 for plaintiff, or in refusing charges 1, 2, 7 and 8 requested by defendants.

Reversed and remanded.