Ware v. Dewberry

84 Ala. 568

• Court: Supreme Court of Alabama
• Decided: December 15, 1887
• Status: Published

Opinion

SOMERYILLE, J.

The Circuit Court erred in giving the general affirmative charge, instructing the jury to find for the defendants if they believed the evidence. The defendants came into possession of the land sued for as the heirs of one Aaron Dewberry, holding by privity of estate under him as their deceased father and ancestor. He had purchased the land from the plaintiff, having paid a part of the purchase-money and' gone into possession during his life-time. Under this state of facts the defendants were estopped from denying the original title of the plaintiff, from whom they claimed derivatively. — Tenn. & Coosa R. R. Co. v. East Ala. Railway Co. 75 Ala. 516. They must sIioav either a divestiture of the plaintiff’s title by conveyance of some kind from him, or else an adverse possession for a sufficient length of time to bar the right of entry on his part.

The plaintiff, moreover, is shown to have had a prior actual possession of the lands, accompanied by both color of title and claim of OAvnership, which would be sufficient to authorize a recovery against an intruder or trespasser. — Crosby v. Pridgen, 76 Ala. 385; Wilson v. Glenn, 68 Ala. 383. The defendants deriving possession, and, so far as the bill of exceptions sIioavs, only an imperfect equitable title from the plaintiff, intermediately through their father, Aaron Dewberry, the court would have been justified, on request, in giving the general affirmative charge for the plaintiff.

Reversed and remanded.