Gerald v. Hayes

• Decision Date: 16 December 1920
• Docket Number: 5 Div. 766
• Citation: 87 So. 351,205 Ala. 105
• Parties: GERALD et al. v. HAYES et al.
• Court: Alabama Supreme Court

87 So. 351

205 Ala. 105

GERALD et al. v. HAYES et al.

5 Div. 766

Supreme Court of Alabama

December 16, 1920

Appeal from Circuit Court, Chilton County; B.K. McMorris, Judge.

Ejectment by Lawrence F. Gerald and others against Canitt Hayes and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Lawrence F. Gerald, of Clanton, and F.B. Collier, of Yreka, Cal., for appellants.

Grady Reynolds, of Clanton, for appellees.

THOMAS J.

The suit was ejectment for the recovery of 79/80 undivided interest in lands. When the evidence was concluded, the court gave the general affirmative charge at defendant's request in writing, for reasons stated. The general rule in ejectment is that plaintiff must recover on the strength of his own, and not the weakness of the title of his adversary. Mahan v. Smith, 151 Ala. 482, 44 So. 375.

The evidence was that the patent to the land was duly issued that Jane Hayes went into possession of the same and had continuously lived thereon since 1890, claiming it as her own, continually paying taxes on it and had a "deed to it"; and that this possession and claim of ownership extended to the date of the trial. It was competent for Jane Hayes to testify to the collective fact of her possession for 30 years, the continuous listing of the lands for taxes, and payment of the same. McMillan v. Aiken, 88 So. 135.

The possession of land under claim of right or ownership distinct from, and hostile to, the title of the true owner is adverse possession, neither claim of the real title in good faith nor color of title being essential; and such actual possession, being a patent fact, furnishes evidence of its own existence, and is the equivalent of actual notice of the claim under which it is held. Murray v. Hoyle, 92 Ala. 559, 9 So. 368; Newsome v. Snow, 91 Ala. 641, 8 So. 377, 24 Am.St.Rep. 934; Bernstein v. Humes, 75 Ala. 241, 244; Reynolds v. Kirk, 105 Ala. 446, 17 So. 95. It was competent to show defendant's acts of ownership as illustrating the character of her possession of the land on December 23, 1904; and if it was such as would have been adverse possession (at common law), when the deed by J.W. Franzen and wife to I.S. Gerald & Co. was made (though valid between the parties), it was void as against the adverse holder. Davis v. Curry, 85 Ala. 133, 4 So. 734; Mahan v. Smith, supra; Grant v. Nations, 172 Ala. 83, 55 So. 310; Curtis v. Riddle, 177 Ala. 128, 59 So. 47; Chandler v. Pope, 87 So. 539. It is only since the adoption of section 3839 of the Code of 1907 (Roman v. Lentz, 194 Ala. 610, 69 So. 827; Burnett v. Roman, 192 Ala. 188, 68 So. 353) that statutory ejectment may be brought in the name of the real owner who has obtained his title by conveyance of a grantor not in possession at the time of the execution of the conveyance, and while the lands sought to be conveyed were in the adverse possession of a defendant or his predecessor in title. That is to say, before the adoption of the statute, as now contained in the Code as section 3839, it was held that a deed to land which, at the time of the conveyance, is in the possession of a third person holding adversely and claiming to be in rightful possession thereof, though without color of title, is void as against the adverse holder of such premises, and it will not support an action of ejectment by the grantee against the adverse holder. Mahan v. Smith, supra; Bernstein v. Humes, 60 Ala. 582, 31 Am.Rep. 52; Grant v. Nations, supra.

Nor is the case changed by the rule that by statute the property and possession of a grantor pass as fully by his conveyance "as if seizin had been formally delivered" (Code, § 3364; Chandler v. Pope, 87 So. 539; Yancey v. S & W.R. Co., 101 Ala. 234; 13 So. 311, Daniels v. Williams, 177 Ala. 140, 58 So. 419; Chapman v. Chapman, ...