Kretzer v. Jackson

• Decision Date: 22 May 1913
• Citation: 183 Ala. 642,62 So. 811
• Parties: KRETZER v. JACKSON.
• Court: Alabama Supreme Court

62 So. 811

183 Ala. 642

KRETZER v. JACKSON.

Supreme Court of Alabama

May 22, 1913

Appeal from Circuit Court, Lauderdale County; C.P. Almon, Judge.

Action by Frank Jackson against Anna Kretzer. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Plaintiff traces his title through deed from William Peck to Herman Muller, mortgage from Herman Muller to Frank Jackson, and deed from Jackson as mortgagee to himself. Defendant claims by deed from William Peck to herself and adverse title under the facts stated in the opinion.

Paul Hodges, of Florence, for appellant.

Ashcraft & Bradshaw, of Florence, for appellee.

ANDERSON, J.

While there was evidence that Peck deeded the land in question to Muller, and which was a part of his home place, there was further proof that Muller never took possession of the land, or abandoned it shortly thereafter if he did, and returned the deed to Peck and told him he did not wish the land. Peck has ever since remained in possession of same until he conveyed it to this defendant in 1906. If these facts were true, Peck's possession was adverse, and the boundaries thereof were coextensive with his original title, which was admitted to be in him prior to the Muller deed, and he did not have to show a pedis possessio as to all of the land. Hickman v. Link, 97 Mo. 482, 10 S.W. 600; Hughes v. Israel, 73 Mo. 538. Nor did Peck have to file a claim or declaration, under the act of 1893, p. 478, in order to claim adversely, as he was claiming under his original title and a surrender or gift to him by Muller of so much of the land as he had previously conveyed to him. Owen v. Moxon, 167 Ala. 615, 52 So. 527; Holt v. Adams, 121 Ala. 664, 25 So. 716; Sledge v. Singley, 139 Ala. 346, 37 So. 98. The statute as it previously existed was changed by the Code of 1907, § 2830, but the possession in this case is controlled by the old statute.

The trial court erred in holding that the defendant was not entitled to rely upon the adverse possession of herself and father in order to defeat the plaintiff's title as acquired by the mortgage from Muller, and the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

DOWDELL, C.J., and MAYFIELD and DE GRAFFENRIED, JJ., concur.