Black v. Tennessee Coal, Iron & Railroad Co.

• Decision Date: 22 June 1891
• Citation: 9 So. 537,93 Ala. 109
• Court: Alabama Supreme Court
• Parties: BLACK ET AL. v. TENNESSEE COAL, IRON & RAILROAD CO.

9 So. 537

93 Ala. 109

BLACK ET AL. v. TENNESSEE COAL, IRON & RAILROAD CO.

Supreme Court of Alabama

June 22, 1891

Appeal from city court of Birmingham; A. A. COLEMAN, Special Judge.

Action of ejectment by James, William, and Martha Black against the Tennessee Coal, Iron & Railroad Company. Judgment for defendant. Plaintiffs appeal. Affirmed.

Arnold & Evans, for appellants.

Hewitt, Walker & Porter and R. H. Pearson for appellee.

COLEMAN J.

This was a statutory action of ejectment to recover land. Plaintiffs claim title through their ancestor, James Black who died in possession of the land in the year 1840, leaving 10 children, but no widow, surviving him. James Black went into possession under a sheriff's deed, in which the lands are described as "the south end of the west half of the north west quarter of section nineteen, township seventeen, range three west, in the Tuscaloosa land district Black creek being the dividing line, as the property of Josiah Goolsby." There is no evidence of actual possession by the children of James Black after his death, in 1840. The defendants, for a defense, relied upon the statute of limitations of 10 years. To show adverse possession under color of title, the defendant introduced evidence tending to show that one Philyear lived adjacent to the land prior to the year 1850, cultivated one or two acres of the land, and claimed ownership of the entire tract. The defendant offered to introduce in evidence a deed from Philyear to one Shoemaker, in which the lands were described as "all that part of the west half of the north-west quarter of section nineteen, township seventeen, range three west, that lies south of Black creek." Neither state nor county nor land-district is mentioned in this deed of conveyance. Many objections were urged against the introduction of this deed; among others, one was that "for a party who claims under color of title, the deed itself must so describe the lands as of itself to give notice, without the aid of parol proof." When title to land is shown to be in one person, and the possession in another, presumptively the possession is subordinate to the title. The burden of proving that the possession is adverse and hostile to the true title is cast upon the party asserting it. The doctrine of adverse possession rests upon the acquiescence of the true owner, and acquiescence cannot be proven or presumed without notice of the adverse claim. To make good the claim of title by adverse holding, the party asserting it must show the true owner knew of his possession under a hostile claim, or the possession and claim must be so open and notorious as to raise a presumption of notice, which the law regards as the equivalent of proof of actual notice. Lucy v. Railroad Co., (Ala.) 8 South. Rep. 806; Woods v. Transportation Co., 84 Ala. 566, 3 South. Rep. 475; Dothard v. Denson, 72 Ala. 545; Alexander v. Wheeler, 69 Ala. 332; Collins v. Johnson, 57 Ala. 304. An important distinction as to the extent of the possession of a bare trespasser and one who claims under color of title should be kept in view. The possession of a trespasser is limited to his actual occupancy,-the " possessio pedis,"-whereas the possession of one under color of title is generally construed to be co-extensive with the boundaries described in the written instrument under which the possession is held. Lucy v. Railroad Co., supra; Burks v. Mitchell, 78 Ala. 63; Stovall v. Fowler, 72 Ala. 78; Childress v. Calloway, 76 Ala. 133; 72 Ala. 545, supra. Mere color of title does not draw possession to one who is not or does not take actual possession of some part of the land conveyed; but possessio pedis of any part of the tract conveyed, in law, is held to be the actual possession of the entire tract. It is not constructive possession, strictly speaking, but actual possession, that a party has under color of title of the premises conveyed. Technically speaking, there is no such thing as constructive possession under color of title; and the use of this phrase in Jones v. Pelham, 84 Ala. 211, 212, 4 South. Rep. 22, and Railroad Co. v. Boykin, 76 Ala. 566,-when considered in reference to the facts of those cases, show that the court used it as synonymous to actual possession, as above stated. In Stovall v. Fowler, 72 Ala. 78, it was expressly declared that, where there is an entry on lands under color of title by deed, in legal contemplation there is "actual possession to the extent of the boundaries contained in the writing; and this, though the title conveyed is good for nothing." Burks v. Mitchell, 78 Ala. 63. If the deed was void because of the indefinite and uncertain description of the land conveyed, such a deed would not convey color of title, and a possession under it would be limited to possessio pedis. Railroad Co. v. Boykin, 76 Ala. 566. Construing this...