Moore v. Elliott

116 So. 346, 217 Ala. 339, 1928 Ala. LEXIS 493

• Court: Supreme Court of Alabama
• Decided: March 29, 1928
• Docket: 6 Div. 694.
• Status: Published

Opinion

BROWN, J.

(after stating the facts as above). The statement of the case filed herewith is sufficient to indicate the questions presented, and to demonstrate that the appellants’ contention that complainant and those under whom he claims entered as tenants in common with John W. and Della Moore is untenable.

The principle asserted by the appellants, that when one enters upon lands he is presumed to enter under the title which, his deed purports on its face to convey, both as to the extent of the land and the nature of his interest, is unquestionably sound. Dew v. Garner, 207 Ala. 353, 92 So. 647, 27 A. L. R. 5; Joyce v. Dyer, 189 Mass. 64, 75 N. E. 81, 109 Am. St. Rep. 603.

It is equally as true that a conveyance to a stranger to the title by one or more co-tenants in possession, purporting to pass the entire title in severalty, and not merely such cotenant’s individual interest, followed by an entry into actual possession, open and exclusive by such stranger under claim of ownership in severalty, amounts to a disseisin of the other eotenants, which if continued for the statutory period will ripen into a good title by adverse possession. Dew v. Garner, supra; Riggs v. Fuller, 54 Ala. 141; 7 R. C. L. 854, § 48, and authorities cited under note 5.

The recital in the deed to Gannon that “the purpose of this conveyance is to convey 289 4/10 acres of land of the heirs of John C. Moore, deceased, situated in Fayette county, Alabama,” clearly evinces a purpose to convey the entire title in severalty, without reservation or recognition of a continuing interest in the heirs of Moore.

Under the alleged facts, Sidney J. Can non, in view of the principle stated, entered not as a tenant in common with John W. Moore and Della Moore, but under a conveyance purporting to convey the entire title in severalty, and he and those claiming under him have held adversely to the world for a period of thirty-three years. During that time the respondents and those under whom they claim have not claimed or enjoyed any benefits of their ownership, and for more than 20 years they might have asserted their claim upon a denial of their rights. “This court has repeatedly held that the lapse of twenty • years, without recognition of adversary right, or admission of liability, operates an absolute rule of repose.” Kidd et al. v. Borum, 181 Ala. 144, 61 So. 100, Ann. Cas. 1915C, 1226; Abercrombie v. Baldwin, 15 Ala. 363; Johnson v. Toulmin, 18 Ala. 50, 52 Am. Dec. 212.

There is no predicate in the alleged facts for the application of the doctrine of laches against the complainant, nor is there any merit in the contention that an open, hostile holding may not be a peaceful possession.

The decree of the circuit court is free from error. -

Affirmed.

ANDERSON, C. J., and SOMERVILLE, and THOMAS, JJ., concur.