Owen v. Moxom

• Citation: 52 So. 527,167 Ala. 615
• Parties: OWEN ET AL. v. MOXOM.
• Decision Date: 12 May 1910
• Court: Supreme Court of Alabama

52 So. 527

167 Ala. 615

OWEN ET AL. v. MOXOM.

Supreme Court of Alabama

May 12, 1910

Appeal from Circuit Court, Cleburne County; John Pelham, Judge.

Action by Phillip S. Moxom against W. T. Owen and others. Judgment for plaintiff, and defendants appeal. Affirmed.

The oral charge of the court, excepted to, is as follows "It is for you to say what does constitute adverse possession under the facts in this case, and whether it existed under the facts."

The following charges were given at plaintiff's request "(1) Gentlemen of the jury, I charge you that if Mr Armstrong was in the adverse possession of the land sued for for more than 10 years prior to 1893, claiming to own the same as his own, or as a partner in the firm of Johnston & Co., and remained in possession until the time that Wallace bought from him, and that after Wallace's purchase he, the said Wallace, remained in possession until the delivery of the possession to Moxom by him under his deed, and the said Moxom, acting through his tenants, remained in possession of the same until Owen ousted him in the fall of 1908, then your verdict must be for the plaintiff. (2) Gentlemen of the jury, if you are reasonably satisfied from the evidence that the plaintiff and those under whom he claims had such an adverse possession of the land as, from its wild nature, it was susceptible of, for 10 years prior to the time that Owen entered into possession, then your verdict must be for the plaintiff. (3) Gentlemen of the jury, to constitute an ouster or adverse possession of wild or unimproved land, it is not necessary that the person claiming the possession should remain on the land, or that he should have any improvements thereon. If such person, claiming the possession, exercises acts of ownership over the land, and has such possession of the land as, from its wild character, it is susceptible of, like cutting timber therefrom, keeping off intruders, paying taxes, offering to sell it, cutting trees off the land, selling trees off the land, cutting board timber off of it, and giving persons permission to get wood and light wood off the land, then such acts may constitute an actual adverse possession of such wild or unimproved land."

The following charge was refused to the defendant: "(5) The court charges the jury that, unless they are reasonably satisfied from the evidence that Armstrong was in the adverse possession of the land sued for, claiming to own the same, for not less than 10 years before the 11th day of February, 1893, plaintiff would not be entitled to recover by reason of any title in Armstrong, unless the jury should further believe that Armstrong was in possession under a bona fide claim of purchase, claiming the said land adversely for a period of 10 years."

Knox, Acker & Blackmon, for appellants.

Blackwell & Agee, for appellee.

ANDERSON J.

The general rule is that in an action of ejectment the plaintiff may recover upon prior possession as against a defendant who has a mere subsequent possession, and such defendant cannot defeat the plaintiff's recovery by showing that there is or may be an outstanding title in another. 10 Am. & Eng. Ency. of Law, 487; Green v. Jordan, 83 Ala. 220, 3 So. 513, 3 Am. St. Rep. 711; Roe v. Doe, 48 So. 49; Dodge v. Irvington Land Co., 158 Ala. 91, 48 So. 383, 22 L. R. A. (N. S.) 1100. This rule does not prevail, however, against a defendant who acquires the possession peaceably and in good faith under color of title; for, if such is the case, the defendant can defeat the plaintiff's right to recover, upon a previous possession, by showing an outstanding title in another and without connecting himself therewith. McCreary v. Jackson Lumber Co., 148 Ala. 247, 41 So. 822.

In the case at bar the plaintiff proved a prior possession, but the defendant proved a possession under a purchase and color of title, and also proved an outstanding title in Henderson, the patentee; and the plaintiff was then put to proof of title by establishing one superior to Henderson's, and which was attempted by showing adverse possession by himself and those under whom he holds for a sufficient length of time for it to ripen into title, and which question was properly submitted to the jury, as there were many possessory acts shown by Armstrong and those holding under him. Indeed, almost every possessory act to which the character of the land was susceptible was proven.

Neither was the defendant entitled to the general charge, upon the theory that there was no declaration or claim filed, in the probate office, of an adverse claim, or because Armstrong was holding for the Johnston Company and there had been no sufficient repudiation of their title by him. The statute (section 2830, Code 1907) requiring registration applies only to one in possession as a trespasser or mere squatter, and not to one who claims under a bona fide claim of purchase. Roe v. Doe, 159 Ala. 614, 48 So. 1033; Holt v. Adams, 121 Ala. 664, 25 So. 716; Sledge v. Singley, 139 Ala. 346, 37 So. 98. There was evidence from which the jury could infer that Armstrong was in possession under a bona fide claim of purchase, and the trial court did not err in not assuming, as matter of law, that Armstrong could not hold adversely after the act of 1893 (Acts 1892-93, p. 478), unless he had filed a written declaration in the probate office. It is true that the proof tended to show that Johnston Company, and not Armstrong, had purchased or entered the land; but it also showed that Armstrong owned an interest in same, and that he was holding under the claim of said Johnston Company. Whether Armstrong held adversely to Johnston Company or not, or his possession could not be tacked onto those holding under him, as to all of the land, did not entitled the defendant to the general charge, as there was proof that Armstrong claimed an interest in the land, and the plaintiff was entitled to his undivided interest, and the general charge, or those questioning Armstrong's right to claim adversely to the Johnston Company, did not except the interest of Armstrong in the land, whether he was holding the other interests for Johnston Company or not.

It is true that declarations made by claimants to land as to the source of title, whether in possession or not, are not admissible in evidence as against another. Doe v Clayton, 81 Ala. 391, 2 So. 24; Daffron v. Crump, 69 Ala. 77. But a party in possession of land may make declarations explanatory of his possession, and either claim or disclaim ownership of the property, and such declarations may be...