Smith v. Roberts

62 Ala. 83

• Court: Supreme Court of Alabama
• Decided: December 15, 1878
• Status: Published

Opinion

STONE, J.

There is testimony in this record tending to show that Wood went into possession of the lot in controversy in 1861, and remained in actual possession about eight years ; that he, Wood, then conveyed to Boyd, who was in possession by her tenant for one or more years, and then conveyed to Smith, who entered into, and continued in possession until the present action was brought, in April, 1877; more than ten years after the statute of limitations commenced running after the war, September 21,1865. There is no proof of title of any kind in Wood; but the testimony tends to show that he made valuable and permanent improvements on the lot, and he and those who claimed under him, all the while, asserted ownership of the lot, and claimed to hold it in their own independent right. This, if believed, constitutes adverse possession under the statute. — See authorities on appellant’s brief; see, also, Collins v. Johnson, 57 Ala. 304 ; Ladd v. Dubroca, 61 Ala. 25. The Circuit Court erred in holding that an adverse possession of ten years is invalid against a paper title, “ unless such possession was accompanied with a bona fide claim of title, or, with color of title.” Adverse possession, open, notorious, accompanied with acts of ownership, or claim of ownership, bars an action for the recovery of lands, without any reference to the bona fides, or color of title, under which the adverse holder claims ownership. — Bohannon v. Chapman, 13 Ala. 641. Herbert v. Hanrieh, rightly construed,- is not inconsistent with this. — 16 Ala. 581. It is the actual claim of ownership, not the bona fides which is the test.

The Circuit Court rightly suppressed portions of Mrs. Wood’s testimony, on the motion of tbe appellee. All that was in it, calculated to affect this case, was but hearsay. The reeprd contains no evidence of the manner in which Wood obtained possession. If Wood had independent, pronounced, adverse possession, claiming ownership during the life time of Boberts, the death of the latter did not arrest the running of the statute of limitations, although his heirs, plaintiffs in this suit, were then infants. — Code of 1876, §§ 3232, 3248; 2 Brick. Dig. 220, §§ 38, 44; Daniel v. Day, 51 Ala. 431.

Beversed and remanded.