Jellerson v. Pettus

32 So. 663, 132 Ala. 671, 1902 Ala. LEXIS 114

• Court: Supreme Court of Alabama
• Decided: June 28, 1902
• Status: Published

Opinion

DOWDELL, J.

— The bill in tins case was filed for the purpose of a sale of the land described for division among joint owners. Henry J. Pettus, one of the respondents, filed a plea setting up staleness, of demand and lapse of time as a bar to a recovery. A submission was had on the sufficiency of the plea, and Horn the decree of the chancellor holding the plea sufficient this appeal is prosecuted.

The plea, among other tilings averred in substance, that James E. Saunders, Anatolo Babby, and Antoine Rabby were in possession of all the land in 1861, under claim and color of title to the whole inerest therein, and that they made partition of the land on Jan’y. 7th, 1861, and by a partition deed which purported to convey the entire interest, conveyed to James E. Saunders, in severalty lot 23, the land here in controversy. That the said Saunders immediately went into possession of said land claiming the whole interest therein. The plea also avers that appellee Pettus, by mesne conveyances from Saunders and those claiming under him, acquired the claim to the whole interest! in this lot, and the possession thereof, and has put two- thousand dollars worth of improvements on the lot, under his claim of exclusive ownership of the whole interest. The plea also avers that the complainant was never in possession of the laud, and that respondent never knew or heard of complainant’s alleged claim until the filing of this bill.

Tim facts alleged in the plea, as to the partition, viz: possession under color and claim of title to* the whole interest in the land by those making partition, the partition of the land, the making of maps, and conveyances in pursuance of the partition, and placing the same upon record, the immediate; entry of Saunders under the. partition proceedings into exclusive possession, claiming the whole interest therein, we’ think Avere sufficient to amount to an actual ouster and disseisin of all persons claiming, at that time, to be tenants in common with Saunders as to lot 23.—Abercrombie v. Baldwin, 15 Ala,, 369 373; Walker v. Crawford 70 Ala. 573, 574; Fields v. Childs, 73 Ala, 474.

The statute of limitations began to run from the time of disseisin. Forty years have elapsed since that date.—a length of time quite sufficient to raise up- every presumption in favor of the respondent’s title against the claims of the complainant. In Black v. Pratt Coal & Coke Co. 85 Ala. 511, it Avas said by this court: “There is, however, a presumption that any and all claims or rights of property, which have been permitted to' slumber, without assertion or recognition for twenty years, have no legal existence, or have been adjusted.” In the case at bar, under the facts stated in the plea, whatever of claim or right the complainant had, the same had been permitted to slumber for a period of forty years, without assertion or recognition. The chancellor was right in sustaining the plea. We deem it unnecessary to cite other authorities in support of the propositions above stated, and content ourselves by referrin g to brief of appellee’s counsel where the cases will be found collated.

Affirmed.