Ashford v. Ashford

Decision Date28 February 1903
Citation34 So. 10,136 Ala. 631
PartiesASHFORD ET AL. v. ASHFORD ET AL.
CourtAlabama Supreme Court

Appeal from Circuit Court, Lawrence County; Osceola Kyle, Judge.

Ejectment by T. T. Ashford and others against A. E. Ashford and others. From a judgment for defendants, plaintiffs appeal. Reversed.

Defendants pleaded the general issue and adverse possession. All the parties claimed title from one Thomas Ashford, who at the time of his death owned the land sued for. T. T. Ashford was the grandson, and the other plaintiffs were great-grandchildren, of Thomas Ashford. A. E. Ashford, one of the defendants, was a son of Thomas Ashford, and was administrator of his estate. A. E. Ashford, after his father's death, and while he was in possession of said land, married Carrie T. Ashford, who was the devisor of the other defendants in the case. After the purchase by E. C Ashford of A. E. Ashford's interest in the land at execution sale, E. C. Ashford transferred and assigned to Carrie T. Ashford the sheriff's deed by indorsement as follows: "For and in consideration of $1,000.00, one thousand dollars, to me in hand paid, I hereby transfer the within deed to Carrie T. Ashford to have, hold and forever possess. March 17, 1875. [ Signed] E. C. Ashford." The other facts are sufficiently shown by the opinion.

David A. Grayson, for appellants.

Kirk Carmichael & Rather, for appellees.

McCLELLAN C.J.

Adverse possession of land against the title is always wrongful until its long continuance has ripened title in the disseisor. But it by no means follows that every wrongful possession is adverse to the true owner. Whether a wrongful or unauthorized possession is adverse depends, among other considerations upon the character of the claim under which it is held. It must be hostile to the whole world. It must be a claim of right against all persons. It must not be in subserviency to or in recognition of the title of the true owner. If there is recognition of the true title, the possession is not adverse to that title, however wrongful or unauthorized it may be in every other aspect. Thus if A. takes possession of the land of B. and holds it as and assuming to be the agent of B when he is not B.'s agent, or being the agent of B., but without authority as such to enter upon and hold his principal's land, his possession, though wrongful and unauthorized, is no more adverse to B. than if he were in fact the latter's agent and duly authorized to take and hold possession for him. So where the administrator of an estate assumes that he has power and authority in that capacity to take possession of the lands of the decedent and hold them, and does take and hold them under the supposed authority of his office of administrator, though, under the particular conditions of the estate, he in fact has no such power or authority, his possession, wrongful and unauthorized as it is, is not adverse to the heirs of the decedent, since he holds the lands, not as his own, but as the lands of the estate, and, of necessary consequence, in clear recognition of the title of the heirs; and his possession can never become adverse to them so long as he claims to hold it in his representative capacity. The inquiry in all such cases is not whether the administrator has a right by virtue of his office to the possession, but whether in point of fact he assumed such right and claimed to hold under it. The validity vel non of his claim is immaterial. Its hostility vel non to the heirs is the important and controlling issue. Its quality as being, or not, in denial of the title of the heirs, and not its quality as being, or not, rightful and authorized determines whether the possession by him under it is adverse to them. That such a claim is not hostile to, but in recognition of, the heirs' title, and that possession taken and held under it is not adverse to them, seem altogether clear. We therefore deem it unnecessary to determine in this case whether A. E. Ashford had the right, as administrator, to take and hold possession of the land sued for. That he did take possession in 1866, immediately after he was appointed administrator, is proved beyond controversy. That he has been in possession from that time to the trial of this cause, continuously and uninterruptedly, there is at least a tendency of the evidence to show. The jury having a right to find in line with this tendency, a further inquiry of importance to be submitted to them was whether he entered upon and took possession of the premises and has continued to hold them as administrator, claiming in that capacity, whether he had any such right or not as administrator. If they found that his claim was based only upon his assumed right as administrator, and that his possession under that claim has continued throughout the years that have passed, that possession could not be adverse to the heirs of his intestate who prosecute this suit, and they should have found for the plaintiffs. If he at any time repudiated this capacity in which he took possession, and afterwards claimed to hold in his individual right, such repudiation would not operate to give an adverse character to his possession unless and until a knowledge of such repudiation was brought home to the heirs--not mere notice, but knowledge. Again, if he took possession as administrator, or at any time held possession in that capacity, and while in possession under that claim of right he actually passed the possession over to...

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    ... ... Kirsch, 150 Ala. 659, 43 So. 796; Cobb v ... Malone, 92 Ala. 630, 9 So. 738; Williams v. Coosa ... Mfg. Co., 138 Ala. 673, 33 So. 1015; Ashford v ... Ashford, 136 Ala. 631, 34 So. 10, 96 Am.St.Rep. 82; ... Ala., Midland Ry. Co. v. Brown, 129 Ala. 282, 29 So ... In Cobb ... v ... ...
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