Lee v. Thompson

• Decision Date: 03 November 1892
• Citation: 11 So. 672,99 Ala. 95
• Parties: LEE v. THOMPSON.
• Court: Alabama Supreme Court

11 So. 672

99 Ala. 95

LEE v. THOMPSON.

Supreme Court of Alabama

November 3, 1892

Appeal from circuit court, Barbour county; J. M. CARMICHAEL, Judge.

Ejectment by A. T. Lee against Jane Thompson. Judgment for defendant. Plaintiff appeals. Reversed.

This was a statutory action in the nature of ejectment, brought by the appellant against the appellee. The facts are sufficiently stated in the opinion. Upon the introduction of all the evidence the plaintiff requested the court to give the following charge: (1) "If the defendant acquired her right by parol gift from John, her right, whatever it was did not become adverse until she asserted it by a positive and continuous disclaimer and disavowal of the title of John and by the assertion of a title hostile to him, brought home to his knowledge; and her possession and assertion and disavowal of this character must have been continuous for the period of ten years." The court refused to give this charge, and the plaintiff duly excepted; and he also separately and severally excepted to the court's giving the following written charges at the request of the defendant: (2) "The court charges the jury that, if the use and occupation of the property is open, notorious, and hostile against all the world, that is sufficient, if accompanied by the claim of ownership; and, if such occupation continued for the period of twenty years, then the jury must find a verdict for the defendant, Mrs. Jane Thompson." (3) "The court charges the jury that actual notice is not necessary to be given to the owner of the property of the actual use, occupation, and adverse possession of said property under claim of ownership. If that adverse possession is open, notorious, public, and against all the world, accompanied by claim of ownership, then that is sufficient notice to the party plaintiff in this suit and, if that continued for twenty years, then you must find for the defendant." (5) "No matter how defendant entered the land, if she openly, notoriously claimed it as her own, used, occupied it openly, notoriously, and continuously for the period of twenty years, then the jury must find a verdict for the defendant, Mrs. Thompson." (6) "If the jury believe from the evidence that the defendant, Mrs. Thompson, has been in possession of the land sued for and described in the complaint since the year 1864 and that she has held the same openly and notoriously as against everybody in the world, claimed the same for her own for this length of time, even as against Frank John, then the verdict of the jury must be for the defendant, Mrs. Thompson. This will be the verdict even though Mrs. Thompson had no right to enter upon the lands at the first. Yet if, entering thereupon, she had since held the same as her own for the time from 1864 up to the commencement of the suit, the verdict must be for the defendant, Mrs. Thompson." There were verdict and judgment for the defendant, and the plaintiff brings this appeal, and assigns as error the various rulings of the lower court upon the charges.

Jere N. Williams and G. W. Peach, for appellant.

Parks & Gamble, for appellee.

THORINGTON J.

In the case of Vandiveer v. Stickney, 75 Ala. 225 reaffirming Collins v. Johnson, 57 Ala. 304, it was decided by this court that an uninterrupted, continuous possession of lands by a donee, under a mere parol gift, accompanied with a claim of right, is an adverse holding as against the donor, and will be protected by the statute of limitations, thus maturing into a good title by the lapse of 10 years; that the fact is immaterial that such a parol gift of lands conveys no title, and only operates as a mere tenancy at will, capable of revocation or disaffirmance by the donor at any time before the bar of the statute is complete; and that it is evidence of the beginning of an adverse possession by the donee, which can be repelled only by showing a subsequent recognition of the superiority of the title of the donor. And in 1 Amer. & Eng. Enc. Law, at page 280, the same doctrine is declared, and supported by the citation of many decisions. In the case at bar, appellee, who was the defendant in the court below, went into the possession of the land sued for by appellant more than 20 years before the commencement of the suit, under a parol gift from her father, and the statement in the bill of exceptions is that "she, defendant, was in possession of the land sued for in the year 1864; that she had...