Harrison v. Alexander , 135 Ala. 307 ( 1902 )

TYSON, J.

Action of ejectment.

Plaintiff claims title to. the lands in controversy as an heir at law of one John Childers. The evidence shows without dispute that Childers and the plaintiff’s mother were slaves. That she was born to them prior to 1863, and that they never cohabited as husband and wife or recognized each other in that relation in any way after the year 1863. That some time in 1864 John, the reputed father of plaintiff, intermarried with one Harriet, a slave, and they commenced to cohabit with each, other and to live together as husband and wife, recognizing each other as such and continued in this relation until his death in 1877.

On this, state of facts, it is clear that the plaintiff is an illegitimate child of John, possessing no inheritable blood and, therefore, took no estate by descent in his lands.—Washington v. Washington, 69 Ala. 281; Woods v. Moten, 129 Ala. 228.

But it is insisted that the defendants, by reason, of the proceedings had in the probate court in the administration of the estate of John Childers, are estopped to deny the legitimacy of the plaintiff. This same contention was' made, predicated upon the same state of facts, in a partition suit instituted by this plaintiff against one of these defendants and others.—Harrison v. Taylor, 111 Ala. 317. Answering this contention this court said: “It is not claimed, nor can it be, that these facts and proceedings relied upon as an estoppel conferred any legal title upon complainant.” This being true, conceding that the facts.disclose an equitable estoppel, without deciding that they do, the plaintiff cannot recover in this action. An equitable title will not support an action of ejectment.—Sharpe v. Brantley, 123 Ala. 105; Simmons v. Richardson, 107 Ala. 697; Hollingsworth v. Walker, 98 Ala. 543.

In this action the plaintiff must -recover upon the strength of her own title as against these defendants who are in possession under color of title.—Price v. Cooper, 123 Ala. 392.

Affirmed.