Gafford v. Strouse

• Decision Date: 31 January 1890
• Citation: 89 Ala. 282,7 So. 248
• Parties: GAFFORD ET AL. v. STROUSE.
• Court: Alabama Supreme Court

7 So. 248

89 Ala. 282

GAFFORD ET AL. v. STROUSE.

Supreme Court of Alabama

January 31, 1890

Appeal from circuit court, Butler county; JOHN P. HUBBARD, Judge.

J C. Richardson, for appellants.

Charles L. Wilkinson, for appellee.

CLOPTON J.

Both parties concede that J. M. Gafford was formerly seised and possessed of the land in controversy. Appellee, who was the plaintiff in the circuit court, derives title under a mortgage executed by him, February 22, 1873. Defendants do not claim that title ever passed from Gafford to them, or either of them, by any legal conveyance. Their defense is that Gafford, being indebted to Mrs. Sally Gafford, who was his wife, for money of her separate estate which he received and used, gave her, in February, 1872, by parol, the lands on which he then lived, including the land in controversy, in payment thereof, putting her in possession; and that she has been in continuous possession, claiming the land as her own for the length of time prescribed by the statute of limitations as a bar to the entry of plaintiff. The court having given the affirmative charge in favor of plaintiff the main inquiry arises whether, from the undisputed facts, the conclusion of law is that Mrs. Gafford did not and could not have such adverse possession as by its own mere force could ripen into a title.

The legal title in the lands, being vested in Gafford when the mortgage was executed, thereby passed to plaintiff. There is no pretense that he had notice of Mrs. Gafford's claim. The possession of the mortgagor thereafter was referable and in subordination to the mortgagee's title, unless rendered adverse by an open and positive disclaimer of his title, brought to his knowledge. Coyle v. Wilkins, 57 Ala. 108. So long as the mortgagor holds in subserviency to the title of the mortgagee, the possession of his vendee under a parol contract of sale cannot become adverse to the mortgagee, unless there is a disclaimer of the title of the mortgagor, and a holding adversely to him. Counsel invoke the principle pronounced in Collins v. Johnson, 57 Ala. 304, and Vandiveer v. Stickney, 75 Ala. 227, that an uninterrupted possession of a donee, under a parol gift, or by a vendee under a parol agreement to purchase when the purchase money is paid, accompanied by a claim to the lands, is adverse to the donor or vendor, and will be protected by the statute of limitations, maturing into a perfect title if continuous for the period prescribed by the statute. But, to have such effect, the facts essential to constitute an adverse holding must enter into and characterize the possession. The mere assertion of a hostile claim or right, and of possession, unaccompanied by adverse actual occupancy, is insufficient.

There is no dispute that Gafford entered into possession of the lands in 1862, and continued in possession, claiming them as his own, until February, 1872, the time of the alleged parol contract of sale. While Mrs. Gafford testifies that she was put into possession at that time, and thereafter claimed the possession and ownership, she also states that there was no change of possession, but she and her husband continued to reside on and occupy the lands, and he controlled them, until his death, which occurred in 1882. Ten years...