Roe v. Doe ex dem. Tennessee Coal, Iron & Ry. Co.

• Decision Date: 12 May 1909
• Citation: 162 Ala. 151,50 So. 230
• Parties: ROE ET AL. v. DOE EX DEM. TENNESSEE COAL, IRON & RY. CO.
• Court: Alabama Supreme Court

50 So. 230

162 Ala. 151

ROE ET AL. v. DOE EX DEM. TENNESSEE COAL, IRON & RY. CO.

Supreme Court of Alabama

May 12, 1909

Rehearing Denied June 30, 1909.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Ejectment by the Tennessee Coal, Iron & Railway Company against R. L Crowder. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Frank S. Andress, for appellant.

Percy Benners & Burr, for appellee.

MAYFIELD J.

The trial court was clearly in error in giving the general affirmative charge for the plaintiff. The real question at issue was whether or not the defendant, and those under whom he claimed title, had been in the adverse possession of the land sued for for 10 years prior to the suit, so as to perfect title thereto in the defendant. Under any and all of the evidence this was a disputed question of fact and not one of law. The jury only, and not the court, should have decided this issue.

The plaintiff, by the bringing of his suit, admitted that defendant was then in possession. His possession he attempted to show was adverse, and was the same then that it had been for 10 years prior thereto. There was some evidence tending to show this. The fact of possession, as well as the character thereof, depended upon color of title. The color of title described the lands in question, the defendant claimed under this color of title, and there was some evidence tending to show actual possession of a part of the lands described in the color of title.

The appellee concedes the well-established proposition of law that actual possession of a part of a tract of land described in a color of title is, by legal fiction, extended to the entire tract so described, but claims that there is a qualification, limitation, or exception to this rule, to the effect (to quote from brief of counsel) that: "If A conveys to B. a tract of land of which he is in adverse possession, and of which he puts B. in the adverse possession, he cannot constructively extend B.'s adverse possession to C.'s land by describing C.'s land in the conveyance to B., along with the land which A. owned"--that B.'s possession under his deed will not thereby be extended to C.'s land. If this qualification, exception, or limitation of the general rule be true or correct, as to which we do not decide, the case made by the record does not wholly fall within it, nor is it wholly taken without the influence of the general rule. The case falls within the limitation to the extent that appellee has title to a part, and to a part only, of the land described in the color of title, but for the adverse possession, and does not claim title to the other lands described in the color; but, so far as the record shows, the defendant and each of those under and through whom he claims title by adverse possession had the same title, claim, and right to the whole. They did not claim the two parts under different rights or titles. They may have had no title or right to any part except that acquired by adverse possession. If they had no title to that claimed by the appellee, then probably they had none to the other; the chain and claim of title to both are the same.

There is no evidence that Mrs. Wheeler or her intestate did not claim to own, or have title or right to convey, the three 40's in question. It is, however, shown that she did not then have the legal title thereto, and it is not shown that she did have the legal title to the other 40, further than possession carries with it a presumption of title. There is nothing to show that the vendor in this case conveyed two separate and distinct tracts of land. Only one was conveyed. Each 40 acres in a conveyance does not constitute a separate tract. The fact that plaintiff, a stranger, did not claim to own the whole, but only a part, could not have the effect to make two tracts. The case at bar does not fall within the qualification declared in the case of Woods v. Montevallo, etc., Co., 84 Ala. 560, 3 So. 475, 5 Am. St. Rep. 393, which is again announced in the case of Henry v. Brown, 143 Ala. 456, 39 So. 325.

The color of title has its inception in Mrs. Wheeler's deed as administratrix. The claim under color of title does not antedate this deed; but it is claimed to exist only thereafter, and to continue down to the time of trial. The source of defendant's title and claim was the deed of the administratrix and possession held thereunder. If Echols took possession of a part of the lands described in the administratrix's deed, and held possession under it, there is nothing in this record to show why it was not, by the rule or legal fiction, extended to the whole. The fact that the legal title to parts of the tract described in the color of title was in different persons, and not in one and the same, can make no difference. To constitute color of title it is not necessary that the grantor should have title to the whole or a part of the entire tract described. Henry v. Brown, 143 Ala. 456, 39 So. 325. If the legal title to the whole had been in the grantor or her intestate, there would be no opportunity or chance for the rule under discussion to apply. The conveyance would then have been a conveyance of the legal title to the whole, and not a mere color of title.

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