Vidmer v. Lloyd

Citation63 So. 943,184 Ala. 153
PartiesVIDMER et al. v. LLOYD.
Decision Date18 December 1913
CourtSupreme Court of Alabama

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action in ejectment by John R. Vidmer and others against Thomas L Lloyd. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

Plaintiff introduced certified copy of the deed from Harriet McGill to Adele Rabby, dated March 13, 1866; also certified copy of a deed from William Vickars and another to Adele Rabby, wife of J.M. Rabby, dated December 3, 1870. The evidence for plaintiff tended to show that Mrs. Rabby bought and paid for the land, and that she lived there four or five years, until she died, and that the husband, J.M. Rabby, lived there several years after.

The following charges were given at defendant's request:

(3) "The court charges the jury that, if they believe from the evidence that defendant was in the actual adverse possession of the land sued for at the time J.M. Rabby made the two deeds to defendant, dated April 14, 1873, and if defendant received possession of said two deeds from said J.M. Rabby in 1873, then the mere making of said deeds by said Rabby and the possession of said deeds by the defendant would not import, or imply, or affirm that Adele Rabby owned said lands at the time of her death, or that defendant consented to or admitted that she owned said lands, or that he held possession of said lands under her, or under her alleged claim or title thereto, and the mere possession of said deeds by the defendant would not break or interrupt his adverse possession of the land, if you believe he had adverse possession thereof."

(9) "The burden of proof is on plaintiff to prove to your reasonable satisfaction that Adele Rabby had and held the legal title to the lands in controversy in this suit at the time of her death; and the court further charges you that the deed from McGill to Adele Rabby and the deed from Vickars and others to Adele Rabby do not prove that Adele Rabby had the legal title to said land at the time of her death."

(10) "The court charges the jury that plaintiffs have not shown a legal documentary title to the land sued for; the deeds put in evidence by them show no more than color of title in Adele Rabby. Mere color of title without actual possession by said Adele Rabby of some part of the land at the time defendant entered into possession would not have given her the right to maintain ejectment against defendant for the land, even though defendant might not have had any right to the land, or the possession thereof; and the plaintiffs, relying solely upon the color of title and prior possession of Adele Rabby, would not be entitled to recover in this action, if she was not in the actual possession of the land at the time defendant entered into possession."

(19) "If Adele Rabby was not in possession of the land when defendant entered into possession claiming to own the land and if Adele Rabby was not in possession of the lands at the time of her death, but if defendant was in actual possession at that time, claiming to own the land, then the presumption would be that defendant, and not Adele Rabby, owned the land."

(20) "If Adele Rabby was in possession of the land, claiming to own it, such possession would carry with it the presumption that so long as she continued in possession she owned the land. But if she abandoned her possession, moved off the land, with no intention of returning, and defendant entered under claim of right of title, then the presumption that Adele Rabby owned the land ceased, and the presumption would be that defendant owned the land from the time of his entry and claim of ownership."

(16) "If you should believe from the evidence that defendant entered into possession of the land in 1870, asserting a claim to the land openly, visibly, continuously, exclusively notoriously, and adversely to all others, and while so in possession of the land, if you should believe that J.M. Rabby executed and delivered to defendant the two deeds which have been introduced in evidence by plaintiff, and if you further believe that defendant continued in such actual, open, visible, continuous, exclusive, notorious, and adverse possession of the land to the present time, then after this great length of time and possession you may presume that John Vidmer and George Vidmer, the surviving heirs and brothers of Adele Rabby, executed to Jacob M. Rabby a deed to the lands involved in this suit prior to April 14, 1872."

The following charges were refused to plaintiff:

(2) "The court charges you that adverse possession does not run against remaindermen while the life tenant is living, and they cannot be deemed to be guilty of delay in asserting their right during said period."

(3) "If you are reasonably satisfied from the evidence that the plaintiffs and defendant claim from a common source, and that plaintiffs have acquired by descent and devise, and that defendant purchased from the husband of Adele Rabby, and that the husband died in 1909, then your verdict should be for plaintiff."

(4) "The court charges you that the statute of limitations cannot run against the remaindermen during the existence of the life estate, and no right of action vests in the remaindermen during the said time for the recovery of the possession of the land, and the court further charges you that, if you are reasonably satisfied from the evidence that the plaintiffs are remaindermen, and the defendant grantee of the same life tenant, and if you are reasonably satisfied that the said life tenant died in 1909, then no adverse possession such as would ripen into a title existed in favor of the defendant prior to the death of the life tenant."

(A) "The court charges the jury that, if they believe from the evidence that defendant entered and claimed the land sued for under the deeds from J.M. Rabby, then he is estopped to deny the title of Adele Rabby."

(5) Given for plaintiff: "I charge you that, if you are reasonably satisfied from the evidence that defendant did not take possession of the land sued for while Adele Rabby was still alive, then there was no adverse possession against the plaintiffs up to the death of J.M. Rabby, and you should find for the plaintiffs."

Gordon & Edington and Ervin & McAleer, all of Mobile, for appellants.

L.H. & E.W. Faith, of Mobile, for appellee.

ANDERSON J.

The undisputed evidence shows that this defendant was in the actual possession of the land sued for, claiming it as his own, for about 40 years. This being true, such possession on his part, without recognition of any claim, right, or title of another, would operate as an absolute repose under the doctrine of prescription. Roach v. Cox, 160 Ala. 425, 49 So. 578, 135 Am.St.Rep. 107, and cases there cited. The rule, however, is that neither the statute of limitations nor the prescription of 20 years begins to run against a remainderman until he has a right to sue, that is, until the termination of the life estate. Bass v. Bass, 88 Ala. 408, 7 So. 243; Bolen v. Hoven, 143 Ala. 652, 39 So. 379; Winters v. Powell, 61 So. 96.

While counsel for the defendant stated in open court that he did not claim under any one, but based his title solely upon adverse possession, the plaintiff introduced deeds to the land to said defendant from J.M. Rabby, the husband of Adele Rabby, and which said deeds were made after the death of the said Rabby. So the question arises, and which is the chief issue in this case: Did the said Adele Rabby, at the time of her death, own the land, or have such a title to or interest in same as would support or authorize a life estate in her surviving husband? The plaintiff showed that Adele Rabby was in possession of the land, as her home, under color of title at the time of her death. If this was true, then she was the...

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8 cases
  • Morris v. Yancey
    • United States
    • Alabama Supreme Court
    • July 24, 1958
    ...Land Co., 256 Ala. 46, 53 So.2d 562; Staten v. Shumate, 243 Ala. 261, 9 So.2d 751; Kidd v. Borum, 181 Ala. 144, 61 So. 100; Vidmer v. Lloyd, 184 Ala. 153, 63 So. 943. In Stearnes v. Woodall, 218 Ala. 128, 117 So. 643, after quoting from Kidd v. Borum, supra, we 'In this respect the elements......
  • Lyons v. Taylor
    • United States
    • Alabama Supreme Court
    • January 30, 1936
    ... ... title supported by an actual, uninterrupted, and peaceable ... possession for twenty years. Vidmer et al. v. Lloyd, ... 184 Ala. 153, 63 So. 943; Kidd et al. v. Browne, 200 ... Ala. 299, 303, 76 So. 65. In Stearnes v. Woodall, ... 218 Ala. 128, ... ...
  • McKee v. Goldthwaite
    • United States
    • Alabama Supreme Court
    • May 20, 1971
    ...Land Co., 256 Ala. 46, 53 So.2d 562; Staten v. Shumate, 243 Ala. 261, 9 So.2d 751; Kidd v. Borum, 181 Ala. 144, 61 So. 100; Vidmer v. Lloyd, 184 Ala. 153, 63 So. 943. In Stearnes v. Woodall, 218 Ala. 128, 117 So. 643, after quoting from Kidd v. Borum, supra, we said: "In this respect the el......
  • St. Clair Springs Hotel Co. v. Balcomb
    • United States
    • Alabama Supreme Court
    • April 8, 1926
    ... ... prescription runs against him. Kyser v. McGlinn, 207 ... Ala. 82, 92 So. 13; Vidmer v. Lloyd, 184 Ala. 153, ... 63 So. 943; Dallas Compress Co. v. Smith, 190 Ala ... 423, 67 So. 289; Reynolds v. Love, 191 Ala. 218, 68 ... So. 27; ... ...
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