Black v. Pratt Coal & Coke Co.

• Decision Date: 06 December 1888
• Court: Alabama Supreme Court
• Parties: BLACK v. PRATT COAL & COKE CO.

5 So. 89

85 Ala. 504

BLACK v. PRATT COAL & COKE CO.

Supreme Court of Alabama

December 6, 1888

Appeal from circuit court, Jefferson county; LEROY F. BOX, Judge.

Ejectment by Robert L. Black against the Pratt Coal & Coke Company. Judgment for defendant, and plaintiff appeals.

A Y. Harper, for appellant.

Hewitt, Walker & Porter, for appellee.

STONE C.J.

The appellant claims title to that part of the W. 1/2 of the N.W 1/4 of section 19, township 17 S., range 3 W., which lies south and east of Black creek, in Jefferson county, Ala. He proves prima facie title in one James Black, acquired by deed in 1839, under which he took possession that year, cultivated a part of the land, and exercised other acts of ownership. He, James Black, and those whose right he had, having the oldest possession brought to view in this record, prima facie he was the owner. James Black died intestate in 1840, residing upon the land at the time, and left 10 surviving children. The family became dispersed, and we hear of no more occupancy of the land by any of the descendants of James Black. One son, Benjamin Black, was born May 1, 1835. He died intestate in 1864, leaving one only surviving child, Robert L. Black, who was born September 28, 1863, and is sole plaintiff in this action. The present suit was instituted April 23, 1887. Proving these facts, plaintiff rested.

The defense rests on the statute of limitations. The case made by defendant is as follows: On the 23d day of December, 1850, William J. Philyear and his wife executed a deed of conveyance to Russom Shoemaker, on the recited consideration of $85, in hand paid. The description of the land conveyed is in the following language: "All that part of the west half of the north-west quarter of section 19, township 17, range 3 west, that lies south of Black creek." On the 12th day of February, 1879, said Shoemaker and wife, and one Miller and wife, sold and conveyed to the Pratt Coal & Coke Company, on a recited consideration of $100 paid, "all the coal, ores, metals, and minerals in, under, and upon the following described real estate, to-wit: All of the west half of the north-west quarter of section 19, township 17 south, of range 3 west, that lies on the south and east side of Black creek, containing forty acres, more or less; also the right and privilege to said Pratt Coal & Coke Company to mine, use, and sell for their own use and benefit, and the benefit and use of their successors and assigns, all coals, ores, metals, and minerals upon, in, and under said lands; and also all timber and water upon the same necessary for the development, working, and mining of said coal, ores, metals, and minerals, and the preparation of the same for market, and the removal of the same; and also the right of way and the right to build roads of any description over the same, necessary for the convenient transportation of said coal and other minerals, metals, and ores from said lands, and for conveying and transporting to and from said lands all materials and implements that may be of use in the mining and removal of said coal, ores, metals, and minerals, in the preparation of the same for market: situated, lying, and being in the county of Jefferson and state of Alabama." On the 25th day of February, 1880, Shoemaker and wife, on a recited consideration of $200 paid, sold and conveyed to Miller all that part of said W. 1/2 of N.W. 1/4 section 19, township 17, range 3 W., lying south and east of Black creek, "excepting such mineral rights as have been conveyed to the Pratt Coal & Coke Company," described as being in Jefferson county, Ala.; and on the 26th day of the same month Miller and wife, on a recited consideration of $1,400, sold and conveyed to the Pratt Coal & Coke Company, conjointly with another tract, the same interest Miller had acquired the day before from Shoemaker, and with the same description and local situs.

Testimony was offered by the appellee, and received, tending to show that at the time of the execution of the deed of Philyear to Shoemaker they both resided in Jefferson county, Ala.; that Philyear resided near the land in controversy, and had for several years prior to the execution of the deed claimed to own, and had cultivated, about two acres of the same. The testimony further tended to show that in March, 1851, or 1852, he (Shoemaker) took actual possession of the inclosed part of the land, though he never resided on it; that he cleared and fenced an additional two or more acres, and cultivated the cleared land until about 1871, claiming the whole land under Philyear's deed, and exercising acts of ownership over it. That after 1871 he did not cultivate the land, but continued to pay taxes on it, and to claim it under Philyear's deed, and to exercise acts of ownership over it, up to the time he sold to Miller. Appellee's testimony tended further to show that Miller took possession under his purchase from Shoemaker, and held possession under claim of right, until he sold to appellee. (This was only one day, unless the contract of purchase antedated the deed.) The testimony of appellee further tended to show that it took possession of said lands under the deed from Miller, built houses thereon, claimed the same under said purchase, and has held it adversely, or under claim of independent right, down to the trial, November, 1887. In rebuttal, appellant produced testimony tending to show "that there had been no cultivation or occupation of any kind, that the places cultivated once had grown up with small trees, and since the year 1865 until the year when Miller and the Pratt Coal & Code Company took possession under their deeds." This last sentence, which is a copy, is not very clear. We suppose the meaning is that since the year 1865 no one has cultivated the land, and it has been suffered to grow up in small trees. This, then, presented at least a disputed question of fact as to the time when the land ceased to be cultivated.

This case is not controlled alone or to any extent by the statute of limitations of 1802, which provides 20 years as a bar to entry upon lands. Clay, Dig. p. 327, § 83. The later statute, (Sess. Acts 1843), approved February 7, 1843, governs this case. Clay, Dig. p. 329, § 93. Ten years is the bar prescribed by that statute. See, also, Code 1852, § 2476; Id. 1867,§ 2900; Id. 1876, § 3225; Id. 1886, § 2614. The act of 1843 gives to infants, etc., five years within which to sue, "after the termination of their disabilities to bring suits." The Codes reduce this proviso in favor of infants, etc., to three years. Code 1852, § 2486; Rawls v. Kennedy, 23 Ala. 240; Owen v. Slatter, 26 Ala. 547. This five years, or three, as the case may be, is not necessarily an addition to the ten years prescribed by the statute. It enlarges the ten years only to the extent that may be necessary to secure to the demandant or suitor the five or three years, after he or she shall have attained to majority. If during the ten years, he or she had the five years of majority, then the period is not enlarged beyond the ten years. The statute is conformed to if ten years have elapsed; and for five or three years, either as part of them or as addition to them, in whole or in part, there has been no disability to sue. Ten years of adverse holding, relieved of disability to sue for five or three of them, as the case may be, works a complete bar. Tayloe v. Dugger, 66 Ala. 444. So, as we shall show hereafter, it is not important to inquire in this case whether the proviso or exception on account of infancy be five years, as prescribed by the act of 1843, or three years, as declared by the Code of 1852.

Another well-recognized principle should be here stated. A party claiming the benefit of an exception or proviso in the statute of limitations can only avail himself of the disability which existed when the right of action first accrued. He cannot avail himself of a succession of disabilities. One disability cannot be tacked upon another. Nor will interpretation ingraft upon a statute exceptions which the legislature have failed to declare. When the statute beings to run, nothing less than a statutory exception intercepts it. 7 Wait, Act. & Def. 272, 276, 277; Barclay v. Smith, 66 Ala. 230; Baker v. Barclift, 76 Ala. 414. The limitation applicable to this suit, as we have shown must be the 10-years statute of 1843, (Clay, Dig. p. 329, § 93,) or sections 2476, 2502, of the Code of 1852. It is not necessary we should decide which of these statutes governs; but see Collins v. Robinson, 33 Ala. 91; act to repeal section 2502 of the Code of 1852, (Sess. Acts, 1853-54, p. 71), Daniel v. Day, 51 Ala. 431. Another gap in the running of the statute of limitations affects this case. From January 11, 1861, to September 21, 1865,-4 years, 8 months, and 10 days,-the statutes of limitations were suspended. That time must be deducted, in any computation covering that period, in which the time necessary to perfect the statutory bar is the subject of inquiry. Jones v. Nelson, 51 Ala. 471; Anderson v. Melear, 56 Ala. 621. To perfect a bar in this case there must have been a continuous adverse holding for 14 years, 8 months, and 10 days. According to the testimony in this case, Shoemaker took actual possession, and commenced cultivating the lands, at the latest in March, 1852. Benjamin Black, father of plaintiff, attained his majority May 1, 1856. Against him the statute commenced running in March, 1852, and, no other obstacle intervening, the bar would have been perfect in 1862. He attained to adult manhood more than five years before that time. His death in 1864 was not and cannot be a factor in the decision of this legal question. Robert L. Black can assert no rights which his father could not have asserted, if...