Brown v. Shafer

SAYRE, J. [1] Statutory action of ejectment by appellee against appellants. Appellee deraigned title from the government of the United States. Appellants sought to show title by adverse possession, and by purchase at a register’s sale, made in pursuance of a decree of the chancery court in a proceeding between the children, heirs at law, of appellee, for a sale for partition. The parties to that proceeding claimed — or it would have so appeared had the record been admitted in evidence — as heirs of appellee, averring that he was dead. But appellee was not dead; he appeared as a witness in his own behalf nor was his identity denied, and the averment that he was dead gave the chancery court no jurisdiction to dispose of his property in his absence. The decree and the sale under it were nullities. Duncan v. Stewart, 25 Ala. 408, 60 Am. Dec. 527; Gill v. More, 200 Ala. 511, 76 South. 453. [2] There was no evidence tending to show an adverse possession by appellee’s children, or any one of them, for the statutory period of 10 years. The fact that, for a few years, they claimed to own the land as children and heirs at law of appellee, supposing him to be dead, did not constitute an adverse possession, and their joinder in the proceeding for a sale, had that record been admitted in evideuce, would have demonstrated conclusively that they were not holding adversely to appellee. Boykin v. Smith, 65 Ala. 294. However, no further demonstration of that fact was needed. [3, 4] Nor had Kinney, the real defendant, who purchased at the register’s sale, been in adverse possession for three years before the commencement of this suit, and so was not in position to claim any advantage under the statute (section 3846 of the Code) allowing compensation for permanent improvements. The record shows that this suit was commenced before three years had elapsed after the alleged sale under which he claimed. In the beginning, this action was brought against the tenant in possession, Brown; but the landlord, Kinney, intervened, thereby assuming the same position in regard to the statute of limitations — and, by the same token, the statute of permanent improvements — as if he had been served with process at the commencement of the suit. Turner v. White, 97 Ala. 545, 12 South. 601. [5.6] The facts stated above being well established, and not denied, along with some undisputed principles of the law of evidence, lead to the necessary conclusion that the trial court committed no reversible error in its rulings on the numerous questions of evidence sought to be raised on the record. Thus, what may have been said or done by appellee during his absence in the West was irrelevant, since his actions or omissions during that time gave no authority to the chancery court t'o dispose of his land as the property of a dead man, nor tended to es *423 tablish an adverse possession in bis children. Until an adverse possession was established, appellee owed no duty to assert his ownership, nor should any unfavorable inference have been drawn from his inactivity. Rucker v. Jackson, 180 Ala. 109, 60 South. 139, Ann. Cas. 1915C, 1058. It is entirely clear that appellee’s children looked, in the beginning of their possession — or the possession, rather, of one of them, which appears to have lasted for two or three years only — -to him for title, and, such being the case, in order to render their possession adverse, there must have been an open disclaimer of his title and the assertion of a hostile title brought home to him by actual notice, or by such an open and notorious assertion of it that notice of an adverse claim could be reasonably imputed to him. Butler v. Butler, 133 Ala. 377, 32 South. 579; Burrus v. Meadors, 90 Ala. 140, 7 South. 469; Boykin v. Smith, supra. At no time did the possession ascribed by appellants to appellee’s children measure up to the mark of these decisions. Appellants cite Busbee v. Thomas, 175 Ala. 423, 57 South. 587, to the proposition that their witness Annie Lindero an should have been allowed to answer questions which sought to elicit the fact that appellee had not exercised acts of ownership during (in effect) his absence in the West. The authority is inapt. In that case, acts of ownership were admissible to fix a boundary by showing how the parties had interpreted a conveyance. Here there was no such question. Here the only question was whether, prior to the register’s sale, appellee’s children had held adversely to him. There are many assignments of error on questions of evidence. We do not think they require detailed statement. They have all had due consideration. We find that the trial judge correctly disposed of each question as it arose, and further, that, in view of the findings of law and fact heretofore stated, even had all the evidence offered by appellants been admitted, appellee would still have been entitled to the general charge which the court gave at his instance. Affirmed. ANDERSON, O. J., and GARDNER and MILLER, JJ., concur.