Lay v. Fuller

• Decision Date: 13 June 1912
• Parties: LAY v. FULLER ET AL.
• Court: Alabama Supreme Court

59 So. 609

178 Ala. 375

LAY v. FULLER ET AL.

Supreme Court of Alabama

June 13, 1912

Appeal from Circuit Court, Chambers County; S. L. Brewer, Judge.

Ejectment by Mary E. Lay against Charles L. Fuller and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Strother Hines & Fuller, of La Fayette, for appellant.

N. D Denson, of La Fayette, for appellees.

SOMERVILLE J.

The action is one of ejectment brought by Mary E. Lay against Fuller and others. The documentary evidence adduced by plaintiff conclusively shows that the land sued for belonged after October 13, 1852, to one William H. Gilbert, who died some 20 years before this action was begun; and, unless his title was afterwards divested by adverse possession and the statute of limitations, the land now indisputably belongs to his legal heir or heirs, so far as the bill of exceptions shows.

The plaintiff, Mary E. Lay, claims as the daughter and heir of said W. H. Gilbert; while defendant claims as purchaser by deed from Ann D. Gilbert and her son, W. H. Gilbert.

It is not pretended that this W. H. Gilbert owned or claimed any interest in the land. Ann D. Gilbert's relation to the land is thus stated in her own language as a witness for plaintiff: "I have lived on said land over 50 years. My father and mother and brothers and sisters, we remained in possession over 50 years of said land. I went out of possession of said land 5 years ago. My brother, William H. Gilbert, gave me possession, and I took possession on his consent. William H. Gilbert owned said land at the time I took possession. He lived on the land when my father and mother went there. No; I never claimed said land as my own. I never had any agreement with any one when I was in possession of said land. William H. Gilbert made an agreement with my younger brother, A. T. Gilbert, in regard to the land, and A. T. Gilbert lived there until he married and left me on the land; and he continued to keep up the taxes for several years after he left the place. Then myself and my two oldest sisters was left on the place. No; never had any deed nor paid any purchase money for said lands, and I never claimed said lands." This witness' son, W. H. Gilbert, testifying as a witness for defendant, stated that while his said mother was on the land he had heard her say "it was hers and her sisters';" and defendant's witness Meadors stated that at the time Ann D. Gilbert executed the deed to defendant, in December, 1907, she said the land was hers.

It thus appears that Ann D. Gilbert's possession was permissive in its inception, and at all times in strict subordination to the title of the owner, her brother, W. H. Gilbert. It does not exhibit a single element of adverse possession, and hence could never ripen into title. If it be urged that she, at some indefinite time during her occupancy, claimed that the land was hers, and repeated the claim when she made the deed to defendant in 1907, this nevertheless falls very far short of even tending to show a status of adverse holding against her brother, or his legal heirs. Potts v. Coleman, 67 Ala. 221, 227. And, even if it might in ordinary cases suffice to do so, it would be wholly inefficacious here; for an actually permissive occupant cannot convert a permissive possession into a hostile and adverse possession, except by a clear, positive, and continuous disclaimer and disavowal of the title of the owner, and the assertion of a title hostile to him, and brought to his knowledge. Collins v. Johnson, 57 Ala. 304, 308; Jones v. Pelham, 84 Ala. 208, 4 So. 22. Without this the length of the occupancy is immaterial, and does not affect the title. Tillotson v. Kennedy, 5 Ala. 407, 39 Am. Dec. 330. There is nothing in this record from which any sort of inference can arise that these isolated, private declarations of Ann Gilbert were brought home to the knowledge of her brother, the acknowledged owner, by whose permission and consent she occupied the land, or to his alleged daughter and heir.

It is clear, therefore, that Ann Gilbert's deed to defendant passed no title to him, unless she is an heir at law of her brother, William H. Gilbert. And, if plaintiff is his legitimate daughter, this alternative is, of course, excluded.

This deed to defendant was, however, admissible in evidence on his suggestion of three years' adverse possession and valuable improvements, not as a muniment of title, but as color of title to show the extent of his possession. But its use should be...