Hays v. Lemoine , 156 Ala. 465 ( 1908 )

DENSON, J.

If the lot sued for was the property of Benjamin C. Steele at the time of his death, then the legal title descended to his only child, Anna, subject, however, to the widow’s right to have dower carved out of it; and on the death of Anna without a will her husband (the plaintiff here) took a life estate in the lot, subject to the same right of the widow. Such was the law at the time of Steele’s death in 1857, and continued to be the law unto the present. — Civ. Code 1896, §§ 1504, 2534, and the sections of the previous Codes there cited; Harlan v. State, 136 Ala. 150, 33 South. 858; Thompson v. Thompson, 107 Ala. 163, 166, 18 South. 247; Marshall v. Crow, 29 Ala. 280. This being true, on the death of the widow (Mrs. Cullen), the life estate vested in the husband would enable him to maintain ejectment against all persons not showing a better title.

The only question, then, to he determined on the motion of the defendant to exclude the plaintiff’s evidence, based on the ground that it did not make out a prima facie case, is whether or not there is sufficient evidence to authorize a reasonable inference of title in Benjamin O. Steele at the time of his death. The agreed statement of facts recites that it was agreed between plaintiff and defendant that the property sued for was set apart to Benjamin C. Steele as a part of his interest in his fathter’s estate. It seems clear to us that this agreement, if it does not, as against the motion, conclusively show such title, at least affords a reasonable inference that the lot belonged to the father’s estate and that it was legally set apart to Benjamin C.; and, this being true, the presumption, in the absence of any proof to the contrary, would be that Benjamin C.’s ownership continued to the time of his death. But we find in the record even more than this: The plaintiff, as a witness, without objection testified that he knew the property had belonged to B. C. Steele, that he knew this through his wife when she was living. It may be true that this evidence is. subject to the objection that it is hearsay; but no such objection was made, nor was the motion to exclude put on that ground. It therefore remains as evidence for our consideration. It is the privilege of parties to try their causes on illegal evidence, if they choose so to do. Our conclusion is that at the time the plaintiff rested his case there was sufficient evidence to put the defendant to her defense, and, of consequence, that the motion to exclude all of the evidence was properly overruled.

The defense attempted by the defendant is that Mrs.' Cullen never acquired possession of the lot in virtue of any quarantine or dower right as the widow of Benjamin C. Steele, deceased, but that her possession was acquired and held independently of such right, and was an'adverse possession held for the length of time and in the manner to constitute in her title as an adverse holder. The real estate of the deceased husband, if it was his last residence or appurtenant thereto, the wido w is entitled to hold in possession until her dower is assigned.— Code 1852, § 1359; Civ. Code 1896, § 1515. But it is conceded in this case that the lot sued for was not the residence of the husband, nor appurtenant thereto. Therefore the doctrine of possession in virtue of the quarantine right is not applicable; and it is distinctly the law in this jurisdiction that the widow is not entitled to possession of real estate of the husband until dower is assigned her, unless he resided on it, or it is appurtenant to that on which he did reside. — Smith v. Smith, 13 Ala. 329; Slater v. Meek, 35 Ala. 528; Clary v. Sanders, 43 Ala. 287; Benagh v. Turrentine, 60 Ala. 557; Clancey v. Stephens, 92 Ala. 575, 9 South. 522, 524; Ogbourne v. Ogbourne, 60 Ala. 616; McAllister v. McAllister, 37 Ala. 484; Waters v. Williams, 38 Ala. 680; Bettis v. McNider, 137 Ala. 588, 34 South. 813, 97 Am. St. Rep. 59; Kelly v. McGrath, 70 Ala. 75, 45 Am. Rep. 75. But, assuming that Mrs. Cullen’s possession began as that of the widow of the deceased husband, and not in hostility to the title of the heir, yet that possession might be converted into an adverse holding, which, if continued for the required period, would ripen into a perfect title by adverse possession. — Foy v. Wellborn, 112 Ala. 160, 20 South. 604; Stiff v. Cobb, 126 Ala. 381, 28 South. 402, 85 Am. St. Rep. 38; Robinson v. Allison, 97 Ala. 596, 600, 12 South. 382, 604; Robinson v. Allison, 124 Ala. 325, 27 South. 461; Johnson v. Oldham, 126 Ala. 309, 28 South. 487, 85 Am. St. Rep. 30.

The defendant offered as evidence, to show color of title, a deed from F. G-. Kimball to Mrs. Pauline Cullen; and the bill of exceptions recites that the deed includes •the property sued for. The deed purports to have been executed on the 3d day of May, 1867. The bill of exceptions contains no evidence which tends to show that Mrs. Cullen had possession of the lot before the execution of this deed; and in view of this fact, coupled with the further fact that Mrs. Cullen had only an inchoate right of dower in the lot without the accompanying right to the possession, it cannot be said as matter of law that Mrs. Cullen’s possession began or originated in her right as dowress. On the contrary, while we will not say that the record - does not contain evidence tending to show her possession was taken in subservience to the title of the heir, we do say there is evidence which tends to show her possession was not taken in her right as widow — that it was not taken in subservience to the heir’s title. Furthermore, even conceding that her possession began with the view that she was entitled to it as the widow of Steele, we think that under our decisions the evidence is such as to make it a question for the jury as to whether such possession was disclaimed in such manner as to convert it into a hostile holding, and was held for the length of time necessary to bar the plaintiff’s right of recovery.- — Foy v. Wellborn, 112 Ala. 160, 166, 20 South. 604.

The oral charge of the court, excepted to, is merely a statement of the contentions of the plaintiff, and contains no reversible error.

We have been unable to find any fault in charges 1, 2, 3 and 4, given at the request of the plaintiff.

Charges 6 and 7, given for the plaintiff, are, to say the least of them, misleading, and, if requested on another trial, should be refused.

Charge 3, requested by the defendant, is faulty, in that it refers a question of law to the jury. The law fixes and defines the 'constituent elements that go to make up adverse possession, and a charge upon the subject should hypothesize these elements.

Charge 6, requested by the defendant, was properly refused, if for no other reason, for that it leaves out the word “consecutive” after the word “years.”

Charge 4, refused to the defendant, is misleading and •argumentative. Moreover, we doi not think there is any conflict in the evidence on the point that Steele was seised of the lot in controversy. The charge was properly refused.

Witness L. J. Cullen had testified, without objection or motion to exclude, that Mrs. Cullen claimed the property as her own from 1870 up to the time of her death in 1901; so that the defendant was not injured by the ruling of the court refusing to allow the witness to answer another question calling for a repetition of such evidence.

There is reversible error in the ruling of the court excluding that part of the showing made for the witness Henderson in this language: ‘ ‘I knew that Mrs. Cullen claimed the property as her' own, and she claimed it continuously to her death as her own.” — Eagle & Phoenix Co. v. Gibson, 62 Ala. 869; Hancock v. Kelly, 81 Ala. 368, 2 South. 281.

For the error pointed out, the judgment is reversed, and .the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Anderson and McClellan, JJ., concur.