Doe ex dem. Alabama State Land Co. v. McCullough

45 So. 472, 155 Ala. 246, 1908 Ala. LEXIS 291

Opinion

ANDERSON, J.

The defendant Hill admitted a complete chain of title in the plaintiff, unless the government had previously conveyed the land under the patent to Emory Sharp. The bill of exceptions shows that said patent was changed so as to include the land in controversy, which did not‘appear therein when issued. If the patent was for other land, and this land was put in after its issuance, said patent could not operate to convey the title to the land put in subsequent to its issuance and delivery. The plaintiff having shown title to the land, the defendant Hill was put to his defense of adverse possession in order to defeat the plaintiff’s recovery.

There was no proof of adverse possession for 10 years before the suit was brought, and the trial court erred in not giving the written charge requested by the plaintiff. The only proof of any actual and continuous possession was that of the Henderson heirs, commencing in 1897. The witness McCullough testified that Henderson was in possession of the land prior to his death and cut timber therefrom about 15 years before his death, but admitted on cross-examination that he had no knowledge of any possession by Henderson, and only knew that his heirs took possession in 1897. Nor did the witness Scott testify as to any actual possession of the land prior to 1897 by Henderson or any one else. It may have been known for years before as the property of said Henderson ; but the witness did not attempt to prove that Henderson was ever in actual possession of said land or any part of same.

It was immaterial whether the patent, as charged, operated as color of title to this land or not, as there was no proof that any one went into actual possession of any part of the land under said patent 10 years before the suit was brought, which fact was essential, whether with or without color to title, to defeat plaintiff’s title. The trial court could have well given the general charge for the plaintiff under the proof as disclosed by the record.

The judgment of the circuit court is reversed, and the cause is remanded.

Keversed and remanded.

Tyson, C. J. and Dowdell and McClellan, JJ., concur.