Hamilton v. Pruitt , 206 Ala. 58 ( 1921 )

This action of statutory ejectment for the recovery of 40 acres of land in Franklin county, Ala., was originally brought against Walter Hamilton, and upon his death pending the suit was revived against the heirs.

The plaintiff proved chain of title back to the government, and the defendant relied upon adverse possession. The 40 acres of land here involved was sold for taxes in June, 1902, for taxes alleged to be due for the year 1901, and this 40-acre tract, together with other lands, was purchased by one Mansell, and was sold by him to Walter Hamilton in 1905; but there is no proof that Mansell ever had possession of the land under his deed. It does not seem to be seriously controverted that all the taxes due for this year (1901) and subsequent years had been paid by the plaintiff, but the tax deeds were admissible as color of title. The defendant sets up adverse possession under color of title, and offered proof as to acts of ownership and possession. This was a controverted issue in the case, and was submitted to the jury for consideration, resulting in a judgment for the plaintiff.

The deed from Mansell to Hamilton purported to convey 120 acres of land. There was evidence tending to show actual possession of the land embraced in that deed, not including the 40 acres here involved, and counsel for appellant make some insistence for the application of the general rule that, when one enters upon a tract of land with a deed or color of title, his actual occupation and improvement of a portion of it will usually be construed as a possession of the whole, coextensive with the boundaries described in the instrument under which he claims title if there be no antagonistic possession, and that under the evidence in this case, in view of this rule, the defendant was entitled to the affirmative charge.

However, there is an exception to this general rule to the effect that, where a vendor conveys two separate and distinct tracts of land, to only one of which he has title, entry upon and occupation of that tract to which his title is good will not, without more, operate as a disseisin of the owner of the other tract, to which the vendor had no title. As said in Woods v. Montevallo C. T. Co., 84 Ala. 560, 3 So. 475, 5 Am. St. Rep. 393:

"A sufficient reason for this, perhaps, is that such actual possession of the occupant is perfectly consistent with the constructive possession of the real owner of the other tract which at law attaches to the true title, and does not, therefore, per se disturb it."

This exception has found repeated application. Montevallo Min. Co. v. Southern Mineral Land Co., 174 Ala. 137, 57 So. 377; Marietta Fert. Co. v. Blair, 173 Ala. 524, 56 So. 131; McCay v. Parks, 201 Ala. 647, 79 So. 119.

There is no contention but that a good title was conveyed by the deed from Mansell to Hamilton to the other land except the 40 acres here involved. Nor is there any contention that under the tax deed Mansell acquired any title to this 40 acres. The case therefore falls within the exception, and the affirmative charge was properly refused.

In arguing the fifth assignment of error counsel for appellant rely upon the principle that declarations of one in possession of land, explanatory thereof, are admissible, citing Smith v. Bachus, 195 Ala. 8, 70 So. 261, and insists that the court erred in excluding the testimony of witness Isom that Hamilton told him that he had bought the land. One of the foundations, however, for the admission of such evidence is the fact that these declarations were made while the party was in possession of the property (Payne v. Crawford, 102 Ala. 387,14 So. 854), and it is sufficient answer to this assignment of error that there was no proof that at the time of the declaration Hamilton was in possession of this land.

There is some reference as to the assignment of error dealing with damages for waste on the land sued for, but, as there was no finding by the jury or judgment by the court of any damages whatever, these assignments need no consideration.

Charge 5, refused to the defendant, requested a verdict for the defendant upon the possession of Hamilton without any reference to its duration as to time, and appellant can take nothing by this assignment.

Charge C was properly refused as not correctly defining the elements of adverse possession and was unsound. There are a few other assignments of error in reference to charges, which we deem unnecessary to separately treat. Suffice it to say they have been given careful consideration in consultation, and the action of the court thereon discloses no reversible error.

The oral charge of the court fully instructed the jury upon the law of adverse possession as applicable to the facts of this case, and charges were given for the respective parties touching upon this phase of the suit, and a consideration of the record discloses no reversible error.

The judgment appealed from will be here affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.