Lowery v. Davis

• Citation: 8 So. 79
• Parties: LOWERY v. DAVIS.
• Decision Date: 19 June 1890
• Court: Alabama Supreme Court

8 So. 79

LOWERY v. DAVIS.

Supreme Court of Alabama

June 19, 1890

Appeal from circuit court, Calhoun county; LEROY F. BOX, Judge.

Ejectment in the statutory from brought by James P. Lowery against J P. Davis. The plaintiff's father owned the lands in controversy prior to his death, which occurred in 1847. In 1849 they were duly allotted to the widow as her dower. In 1855 an alleged invalid petition was filed by plaintiff's guardian, and proceedings were had thereunder in the probate court, with reference to the sale of the land in controversy for the benefit of the ward. This land was sold under this proceeding, and the purchaser at such sale afterwards conveyed the said land to the defendant in this case. The sale by the guardian was made in 1858, and this suit was brought in 1888. It is shown that the defendant and those under whom he holds have been in continuous possession ever since 1858, under the deed of the guardian, which the plaintiff alleges was void. The widow died in 1885, less than three years before this suit was instituted, and the action was brought to recover the reversion on the termination of the life-estate. Defendant pleaded the general issue and the statutes of limitations of 10 and 20 years. Upon the evidence, the court charged the jury, at the request of defendant, in writing: "If the jury believe the evidence in this case, they must find for the defendant." Plaintiff duly excepted to this charge, and now appeals, and assigns the giving of it as error.

John H. Caldwell and Kelly & Smith, for appellant.

Brothers, Willett & Willett and G. C. Ellis, for appellee.

MCCLELLAN J.

A careful examination of this case fails to disclose any point of distinction between it and the case of Iron Co. v Fullenwider, 87 Ala. 584, 6 South. Rep. 197. The principle there settled, after mature and exhaustive consideration and investigation, has been since followed in other cases, and may be regarded as the settled doctrine of this court as to the effect the lapse of more than 20 years of actual possession under color or claim of title in fee has upon the title of a reversioner or remainder-man, notwithstanding the disability of the owner of the reversion or remainder to sue at law for recovery of possession within that time. See Landsen v. Bone, ante, 65. That doctrine, operating to perfect the title of the party in possession for the period of prescription, applies fully to the present...