Stringfellow v. Tennessee Coal, Iron & Railroad Co.

• Decision Date: 12 January 1898
• Citation: 22 So. 997,117 Ala. 250
• Parties: STRINGFELLOW v. TENNESSEE COAL, IRON & RAILROAD CO.
• Court: Alabama Supreme Court

22 So. 997

117 Ala. 250

STRINGFELLOW v. TENNESSEE COAL, IRON & RAILROAD CO.

Supreme Court of Alabama

January 12, 1898

Appeal from circuit court, Tuscaloosa county; S. H. Spratt, Judge.

Action by the Tennessee Coal, Iron & Railroad Company against Richard M. Stringfellow in ejectment. From a judgment for plaintiff, defendant appeals. Affirmed.

This was a common-law action of ejectment, which was brought by the appellee against the appellant. There were three demises laid in the complaint. One counted upon a patent granted by the government to the University of Alabama; another upon a deed from the De Bardelaben Coal & Iron Company; and the third, was a deed from the De Bardelaben Coal & Iron Company to the plaintiff. The facts upon which the parties base their respective claims are sufficiently shown in the opinion.

The defendant objected to the introduction in evidence of the deed from the University of Alabama to the De Bardelaben Coal & Iron Company, and also of the deed from the De Bardelaben Coal & Iron Company to the Tennessee Coal, Iron & Railroad Company, upon the ground that at the time of the execution of such deed the defendant was in the adverse possession of the property sought to be conveyed. Each of these objections was overruled, and the defendant separately excepted.

The court at the request of the plaintiff gave the general affirmative charge in its favor. The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give the several charges requested by him.

There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Jones &amp Brown, for appellant.

Van de Graaff & McCarty, for appellee.

HARALSON J.

This suit is in ejectment at common law. It has been frequently held in this state, that a conveyance of lands which are at the time in the adverse possession of a third person, under claim of ownership, without color of title, even, while good as between the parties to the conveyance, is void as against the adverse holder and the grantee cannot recover against him in ejectment though the grantor, whose deed is free from such infirmity may maintain such action. It is also settled, that when there are several demises laid in the complaint, the lessor in each is presumed to assent to the action, and to the use of his title by the nominal plaintiff. Glidden v. Doe, 10 Ala. 167; Harvey v. Doe. 23 Ala. 635; Bernstein v. Humes, 60 Ala. 582; Murray v. Hoyle, 92 Ala. 559, 9 So. 368.

Another well-settled rule is, that adverse possession cannot be set up in favor of any one, so long as the title to the land remains in the government. Wiggins v. Kirby, 106 Ala. 262, 17 So. 354; Wagnon v. Fairbanks, 105 Ala. 527, 17 So. 20.

The proof shows, without conflict, that a patent issued from the United States government to the University of Alabama, for certain lands,-that in this suit included,-on the 16th January, 1892, which were claimed by the university as donated to it, under and according to the provisions of the act of congress of April 23, 1884 (23 Stat. 12). It is manifest, therefore, that until the date of this patent, the defendant could not set up adverse possession against the government, nor its grantee,-the University of...