Rivers v. Thompson

B. F. SAFFOLD, J. The charge in chief, to which the appellant excepted entirely, asserted the following propositions: 1st. The evidence of the plaintiff entitled him to recover, unless his right to do so was defeated by something adduced by the defendant. 2d. The defendant’s tax title would be good if all the requirements of the law had been complied with. There was no question about what these requirements were. 3d. Actual, notorious, visible and continuous possession under color of title was necessary to constitute adverse possession. A tax title was sufficient color of title, if the possession was otherwise adverse. 4th. The deed from Shorter’s heirs would not be vitiated by a prior adverse possession, which was abandoned at the date of the deed. 5th. Cutting timber on land fit for no other purpose might be adverse possession, but if the land was suitable for other purposes such mere acts of occupation would not be sufficient. [339] We see no objection to this charge ; each proposition contained in it has been distinctly asserted by this court in other cases. It is not claimed that the plaintiff had actual notice of the defendant’s occupation at the time of, or before the conveyance to him. — Farley v. Smith, 39 Ala. 38 ; Brown v. Cockerell, 33 Ala. 38 ; Marston v. Rowe, 43 Ala. 271 ; Rivers v. Thompson, 43 Ala. 533. The first and second charges of the defendant, refused by the court, are correct in principle, but are contained in the charge in chief, even to the declaration that the possession of a part of the land under color of title to the whole was possession of the whole. The court may have refused them, on the ground that they had already been given. The third charge of the defendant, refused, invaded the province of the jury. The judgment is affirmed. Application for re-hearing by appellant. SAEEOLD, J. We are asked to re-hear this ease on two points. 1st. Tfiat the plaintiff did not have, at the commencement of his suit, the legal title to that portion of the land formerly owned by Scott. 2d. That the charges of the defendant refused by the court ought to have been given. The sale of Scott’s interest was made by his administrator, and the purchase-money was paid in 1853. Eobertson, the purchaser, conveyed to the plaintiff, or those under whom he claims, in 1857. The sale to Eobertson was confirmed and title ordered in 1859. The suit was commenced in 1858. The doctrine of relation is applicable when necessary to promote the ends of justice, as to avoid the effect of an adverse possession, intermediate the conclusion of the contract and the giving of the deed, or to render an intermediate sale by the grantee valid. — Jackson v. Bull, 1 Johns. Ch. Cas. 81 ; Jackson v Raymond, ib. 85 ; Johnson v. Stagg, [340] 2 Johns. Rep. 500 ; Jackson v. Dickenson, 15 Johns. 309 ; 8 N. Car. (Iredell) 505. Where there are divers acts concurrent to make a conveyance, estate or other thing, the original act shall be preferred, and to this the other act shall have relation. — Jackson v. McCall, 3 Cow. 75. We think the deed made to Robertson by the administrator of Scott should relate back at least to his payment of the purchase-money, in order to support his conveyance to Shorter’s heirs. The other point was considered in the first opinion. A re-hearing is denied.