Anglin v. Thomas

• Decision Date: 20 December 1904
• Citation: 37 So. 784,142 Ala. 264
• Parties: ANGLIN v. THOMAS.
• Court: Alabama Supreme Court

37 So. 784

142 Ala. 264

ANGLIN v. THOMAS.

Supreme Court of Alabama

December 20, 1904

Appeal from Circuit Court, Jackson County; J. A. Bilbro, Judge.

Action by Leonard Thomas against Z. T. Anglin, in which Mary Anglin claimed the property attached. From a judgment for plaintiff claimant appeals. Reversed.

There was conflict in the evidence as to the ownership of the property levied upon, which was in possession of the husband and wife, living together as such. The jury found for the plaintiff, and that the property was that of the husband, the defendant, and liable to plaintiff's attachment. On the trial of the cause claimant requested the following charge "When there is a controversy as to whether property belongs to the husband or wife, the possession of the husband is not adverse to the wife, and such possession is not evidence of the husband's title." The court refused to give said charge, which refusal the appellant assigns as error.

J. E Brown, for appellant.

Virgil Bouldin, for appellee.

ANDERSON J.

This was a claim suit between Mary Anglin, claimant, and Leonard Thomas, plaintiff, growing out of the interposition of a claim to property levied on as the property of her husband the defendant. There was conflict in the evidence as to the ownership of the property levied upon, which was in possession of the husband and wife living together as such. The jury found for the plaintiff, and that the property was that of the husband, the defendant, and liable to plaintiff's attachment.

There are several assignments of error, but all seem to have been abandoned in the brief of claimant's counsel, save the refusal of the court to give the following charge: "When there is a controversy as to whether property belongs to the husband or wife, the possession of the husband is not adverse to the wife, and such possession is not evidence of the husband's title." When two persons are jointly in possession of property, the legal title being in only one of them, the law relates the possession to the title; and when a husband and wife, living together, have a community of possession of property the legal title to which is in the wife, possession of such property will be referred to the title. Larkin v. Baty, 111 Ala. 303, 18 So. 666. We cannot, therefore, see, when there is a community of possession, as in this case, that the possession of the husband would be adverse to the wife's title, or evidence...