Chastang v. Chastang

• Decision Date: 20 December 1904
• Citation: 141 Ala. 451,37 So. 799
• Parties: CHASTANG v. CHASTANG.
• Court: Alabama Supreme Court

37 So. 799

141 Ala. 451

CHASTANG v. CHASTANG.

Supreme Court of Alabama

December 20, 1904

Appeal from Circuit Court, Mobile County; William S. Anderson Judge.

Action in ejectment by Pauline Chastang against Adele Chastang. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The title of the plaintiff was based on a claim of adverse possession of over 20 years by herself and her father Theodore Collins. The defendant claimed under a complete paper title from the United States government; being a patent issued to her father, Zeno Chastang, on November 15, 1854. The plaintiff introduced evidence showing that her father entered on the land in question about 45 years before the commencement of the suit; that he built a house thereon, and inclosed about 4 acres with a rail fence; that as to this 4 acres his possession was open and exclusive, and as to this 4 acres the defendant admits plaintiff's title. The evidence for the plaintiff further tended to show that her father entered on the land under the United States patent and built a house on a portion of it, in which he lived until his death, and which has since been occupied by his family. As to the remainder of the 24 acres in controversy, outside of the Collins inclosure, the evidence is in conflict, though it is shown that both parties cut firewood therefrom at various times, and in various portions thereof. The witness Pierre Chastang, for the defendant, testified that he had lived with his father, Zeno Chastang, and that his father had cut wood off the land in controversy as often as he wanted to, that he continued to do so up to his death, and that he (the witness) cut some off it. The defendant asked: "How often did he get firewood there?" The court sustained plaintiff's objection to this question, to which defendant excepted.

The court gave the jury the following charge ex mero motu "The possession of land, if it is under color of title-- That is, if possession is taken under a paper purporting to be a deed, describing the land, and the grantee goes into occupancy of a part of the land described in the deed, and claims the whole tract, such possession would be constructive possession of the whole tract, and, if continued for ten years without interruption, would ripen into an indefeasible title. So the possession of Pauline Chastang under that deed from her brothers and sisters, if it began and continued for ten years without interruption, would give her a title by adverse possession. If her possession was interrupted in 1898, that was not ten years from 1890, the date of the deed. If her possession had not been interrupted for a couple of years longer, so as to complete the ten years, she would have acquired title by such possession of part of the land. This is a good illustration of possession under color of title. If she went into possession of a part of the land described in that, claiming the whole tract so described, that would be possession under color of title; but that possession was interrupted by the building of the wire fence in 1898, so that does not conclude this case." Defendant excepted to above charge (assignment of error No. 25). The court thereupon stated to the jury that he did not intend to instruct them as to who was in possession; that that was for them to determine, under the evidence--and added: "Where a party comes into possession under a conveyance, although that conveyance may be void, and takes possession of a part of the land, claiming it all, that possession is extended to the whole of the land so described in the deed, except such part as may be in the adverse possession of somebody else." The court, at the request of the plaintiff, charged the jury as follows: "The court charges the jury that if they believe from the evidence that Zeno Chastang knew Theodore Collins was claiming the land in dispute, and admitted his claim, then acts of possession thereafter by Zeno on other portions of the land conveyed by the patent would not be acts of possession of the land in dispute, even though such land is embraced in such patent." The defendant excepted to the giving of the foregoing charge (twenty-sixth assignment of error). The defendant requested the court to give the following charges, to the refusal of which defendant excepted: "The court charges the jury that they cannot, under the evidence in this case, find for the plaintiff as to any land which was not included within the rail fence which surrounded the house of Theodore Collins, or within the fence surrounding the garden or field of the plaintiff, Pauline Chastang [[twenty-seventh assignment of error]. The undisputed evidence in this case shows that the heirs of Zeno Chastang were, at the time that the deed to the plaintiff was executed, in the actual possession of a part of the land described in the patent which covers the land involved in this suit; and the plaintiff's deed, therefore, did not operate to extend the plaintiff's actual possession over any of the other lands of which she was in actual possession [[twenty-eighth assignment of error]. The court charges the jury that neither Theodore Collins, nor any of his children, could obtain title to any part of the land in suit without having the exclusive, adverse possession thereof for a continuous period of ten years, and, in order to establish such exclusive possession, it must be established reasonably to the satisfaction of the jury that neither Zeno Chastang nor any of his heirs claiming under him, were permitted to enjoy the possession thereof under their title even for a single day during the ten years, or even jointly or in common with the plaintiff's father [twenty-ninth assignment of error]."

Gregory L. & H. T. Smith, for appellant.

SIMPSON J.

This was an action, in the nature of an action of ejectment brought by appellee, Pauline Chastang, against appellant, Adele Chastang. The title of the plaintiff was based on a claim of adverse possession of over 20 years, while the defendant derived her title through her ancestor, who held a complete paper title from the United States government; being a patent from the government to her father, dated November 15, 1854. There is no pretense that any of the land, except three or four acres, to which appellant admits adverse possession was established, has ever been inclosed until about five years ago, when the defendant inclosed it by building a wire fence. It is proved, also, that defendant's father, Zeno Chastang, took possession of the tract of land under the United States patent, by building on a portion of it a house, in which he and his family continued to live, successively, up to the time of the commencement of this suit. The plaintiff proved that her ancestor, Theodore Collins, had a house on the three or four acre tract, which was inclosed by a fence, and that he lived there most of his life, having entered it about 45 years ago; but a short time before he died he moved away, and lived with his daughter, the plaintiff, on another tract of land. But it seems to be proven by the evidence that, as to the three or four acre tract, the adverse possession was continuous. As to the remainder of the tract, the son of Theodore Collins testified that his father claimed a strip of about twenty-four acres, but he does "not know exactly where the line is," but told him "not to go west of a certain tree," which tree was about 35 feet from where the wire fence now is, but the witness does not say in what direction. He states that the land which his father claimed ran north and south, with a branch on the north. He and other witnesses testify that at different times Theodore Collins cut firewood for his own use, and for selling to the steamboats, and rail timber, from the land outside the rail fence. There is no testimony showing any acts indicating any distinct boundary to the land supposed to have been claimed by Theodore Collins, nor do the witnesses testify definitely as to just where he cut wood, except that most of them say he cut wood outside the rail fence. One says he cut some north, and some south, of the rail fence. The plaintiff says he cut wood all over it, and one witness says he cut wood "in any old place." The witness Andre, who is 80 years of age, states that Theodore Collins has been dead 25 years; that he lived on the land described in the complaint over 25 years; that he was in possession of the land described from the time he moved on it till he died. Zeno Chastang, father of defendant, lived on the place west of Collins. Witness heard a conversation between Collins and Zeno Chastang, in which Zeno pointed out the line, and told the boys who were cutting timber: "This is the land. That on the west is my land. Don't go over there. On the other side is Collins'." Witness describes this land as being about a quarter of a mile from the lower corner to the upper corner; nearly square; a little larger north and south than east and west. He states also that Zeno required Collins to move his fence, so that each man should "have his own fence about his own land," and that this was done, leaving the alley between them. This was about 40 years ago, "before the war." There seems to be no proof of any acts of ownership by the heirs of Collins since his death, except that his son-in-law Juzang and his sons lived in the house, and did not use the land (outside the inclosure) except to get firewood, and that a man named Graham occupied it for a while, and one of the witnesses got some poles once for Graham to repair the fence; that the witness was stopped from getting rails on said land, about 30 steps south of the Collins rail fence, by defendant, she claiming that it was her land. The defendant's witnesses show that Zeno also claimed the land; that he got wood off...