Rountree v. Jackson

• Decision Date: 04 December 1941
• Docket Number: 2 Div. 171.
• Citation: 4 So.2d 743,242 Ala. 190
• Parties: ROUNTREE v. JACKSON et al.
• Court: Alabama Supreme Court

4 So.2d 743

242 Ala. 190

ROUNTREE v. JACKSON et al.

2 Div. 171.

Supreme Court of Alabama

December 4, 1941

Rehearing Denied Jan. 15, 1942.

Appeal from Circuit Court, Dallas County; John Miller, Judge.

The following charges were refused to defendant:

2. The Court charges the Jury, that the Plaintiff in this case is claiming under a deed executed by Robert T. Bryant, as Executor of the last Will and testament of James Mullen deceased, to C. M. Howard and J. E. Wilkinson, who were the predecessors in title to the claim of the Plaintiff and which said deed was executed on the 18th day of May, 1906; that if you are reasonably satisfied from the evidence in this cause that Robert T. Bryant, as Executor aforesaid was not in possession of the property sued for and that it was adversely held by Mrs. Sallie M. Berry, at the time of the execution of said deed then such deed would be null and void and the said C. M. Howard and J. E. Wilkinson acquired no title to such property thereunder, and since the Plaintiff is claiming title under this deed executed to his predecessors in title then under the evidence in this cause you must return a verdict in favor of the defendant.

3. The Court charges the Jury, that unless the Plaintiff and his predecessor in title have been in possession of the property sued for during some interval of time within twenty years immediately preceding the filing of this suit the Plaintiff would be barred by the Doctrine of Repose and it will be your duty to return a verdict in favor of the defendant.

4. The Court charges the jury, that we have in this State, by a long series of decisions, established the rule, that the lapse of twenty years will operate as a positive bar to the enforcement of every character of legal right in the courts of this State, unless there has been, within that period of time, a recognition or admission of some material fact on which the right in question may be adjudged to rest, and which, therefore, keeps it alive and in force. The rule is one of presumption, based on the broad doctrine of prescription, and is not to be rebutted. It has in view the peace and security of society and is applicable, as often held, to all human transactions, which are open to judicial investigation.

Keith & Wilkinson and Pitts & Pitts, all of Selma, for appellant.

Harry W. Gamble, of Selma, for appellees.

THOMAS Justice.

The suit is styled a statutory action in the nature of an ejectment for the recovery of real estate in a city and for damages for the detention thereof. The plea of the defendant was that he was not guilty of the matters alleged.

There was an agreement of counsel as to the sufficiency of respective abstracts furnished on demand, Code 1940, Tit. 7 § 940, and that the same was not required to go back of the deeds from Robert T. Bryant, as executor of the last will and testament of James Mullen, deceased, one such deed being the first appearing in the abstract from said executor to John Donovan, Jr., for Lots 7 and 8 in Block 3 of the Mullen Addition, dated, towit, February 10, 1905; the other being from said executor to C. M. Howard and J. E. Wilkinson for Lot 9 of said Block 3, dated, towit, May 18, 1906.

The appeal challenged the action of the trial court in refusing to instruct the jury as requested by the defendant.

The issues of fact were submitted to the jury and the finding was in favor of the plaintiffs.

There was a motion for a new trial on defendant's behalf, which was overruled. To this ruling of the court defendant duly and legally excepted and assigns said action of the court as error.

The trial judge thus states the issue of fact to the jury, viz:

"Whoever has the legal title to this strip of land measuring four feet in width on Lauderdale Street in this City and County, * * * is entitled to a verdict at your hands.

"Both parties claim from a common source. * * * They both claim that years ago some person owned Lots 8 and 9 in what is now Block 3 in the Mullen Addition to the City of Selma (and conveyed to them respectively),-so they start out from a common source. [Parenthesis supplied.]

"* * * The plaintiffs * * * claim that they have the legal title to this 4 foot strip of land and the defendant says the legal title vests in him. That is a question you gentlemen must determine from all the evidence in this case. * * *.

"Now, according to the first map of that Addition * * * Lot 9 and Lot 8 just above it, just north of it, the dimensions were not given on Lauderdale Street; later on there was a second map of this addition in which the measurements on Lauderdale Street, of Lots 8 and 9 were given."

The learned trial judge states to the jury the law of adverse possession, as follows:

"Now the evidence here, * * * tends to show that there was a fence on Lot 9 of Block 3 of this Mullen Addition to the City of Selma; that that fence * * * ran east and west and that that fence, the evidence tends to show is located on Lot 9 of Block 3 of that addition. Now, if that fence was built and placed where the evidence tends to show it now is, and has been for a number of years, the mere possession by the owners of Lot 8, which is to the north, up to that fence, would not of itself constitute adverse possession; if there is a fence between two land owners, possession up to that fence by either of those landowners, on his side of the fence would not constitute adverse possession; it must be hostile, as against the other man, it must be adverse to him and the mere act of possession is not sufficient in order to oust the title of the men on the other side of the fence.

"The law requires the possession to be more than mere possession. In order for one to gain title to land by adverse possession the law requires that person to hold to that fence, with the intention to claim it as against all other men, the predecessors in title of these two plaintiffs.

"If Judge Rountree's predecessors in title merely worked, or used or occupied this four foot strip of land up to the fence, if that was all, they could never get adverse possession; they could never get legal title to that strip as against those who might have title by a deed.

"It must have been occupied; it must have been used by Judge Rountree and those previous to him, with the intention to hold to that fence adversely, hostilely, as against the owner or owners of Lot 9."

There are several decisions by this court that are cited as having bearing which are holdings that written instruments under which a party enters and holds possession of land, though defective as a conveyance, may operate as color of title and is admissible as evidence to show the extent of his possession. Torrey v. Forbes, 94 Ala. 135, 10 So. 320; Fletcher v. Riley, 169 Ala. 433, 53 So. 816.

In establishing adverse possession as between coterminous owners, the controlling fact is one of intention. There must be an intention to claim the land up to the boundary. Mere possession is not a sufficient basis for adverse possession. McLester Building Co. v. Upchurch, 180 Ala. 23, 60 So. 173; Bates v. Southern R. Co., 222 Ala. 445, 133 So. 39; Smith et al. v. Cook, 220 Ala. 338, 124 So. 898; Hess v. Rudder, 117 Ala. 525, 23 So. 136, 67 Am.St.Rep. 182; Barbaree v. Flowers, 239 Ala. 510, 196 So. 111.

In Hess v. Rudder, 117 Ala. 525, 528, 23 So. 136 supra, the rule long adhered to in this jurisdiction is stated as follows: "We have frequently had occasion to consider the question as to when the possession of a coterminous landowner becomes adverse to his neighbor, and to determine the rule applicable to the facts of particular cases. Possession, to be adverse, must be held under a claim of right, and there can be no adverse possession without an intention to claim title. Hence it is essential to the proper determination of the character of the possession to consider the intention with which it was taken and held. If one occupies land up to a certain fence, because he believes that to be the line of his land, but not having any intention to claim up to the fence, if it should be beyond the line, the intent to claim title does not exist coincident with the possession, and the possession up to the fence is not, therefore, adverse. Where, however, the coterminous owners agree upon a line as the dividing line, and occupy up to it, or when one of them builds a fence as the dividing line, and occupies and claims to it as such, with knowledge of such claim by the other, the claim is presumptively hostile, and the possession adverse. * * *." (Italics supplied.)

To the same effect is Branyon v. Kirk, 238 Ala. 321, 191 So. 345; Brantley v. Helton, 224 Ala. 93, 139 So. 283.

In Lyons v. Taylor et al., 231 Ala. 600, 166 So. 15 the rules governing such an action are stated. The plaintiffs must recover on the strength of their own title and not upon the weakness of the title of the adversary; Gerald et al. v. Hayes et al., 205 Ala. 105, 87 So. 351; Smith v. Bachus et al., 195 Ala. 8, 70 So. 261; that actions of ejectment, or those in the nature thereof, are determinable upon the legal, and not the equitable, title; that a conveyance by a grantor before the adoption of § 3839 of the Code of 1907, Code 1923, § 7453, Code 1940, Tit. 7, § 938, is void, unless his grantor was in the actual possession of the land sued for at...