Bell v. Denson

BBICKELL, 0. J. The evidence proposed to be made by the witness Creamer, that Bell, before the war, had executed a mortgage on the premises, was properly rejected.' If the mortgage was material, it should have been produced, or its absence accounted for, before parol evidence of its existence could be received. 2. Actual, visible, uninterrupted possession, hostile to the true owner, tolls his entry, if continued for the period prescribed by the statute of limitations. When the possession is without written color of title, defining the quantity, or boundaries of the land claimed, it is adverse only to the extent of the actual occupancy. — 2 Smith’s Lead. Cases, 565 ; Golson v. Hook, 4 Strobh. 23 ; Jackson v. Shoonmaker, 2 Johns. 230; Jackson v. Warford, 7 Wend. 62 ; Farley v. Smith, 39 Ala. 38. This is not, however, the principle asserted in the first charge requested by the appellants. The error of the charge lies in limiting the adverse possession of the lands to such parts as were actually inclosed for farming purposes, and the part actually worked for gold. The inclosure is but one act indicating possession and claim of ownership. There are many other acts, equally indicative of possession and the claim of ownership. The erection of houses, followed by subsequent occupancy, would be, perhaps, to a jury, more [449] evincive of possession and ownership, though they were never surrounded by inclosures, than inclosures of fields, sometimes cultivated and sometimes lying uncultivated. The possession must be by acts suitable to the character of the land; and being such, it matters not what is its purpose, whether for cultivation, digging for ores, or for residence. Limited as the charge is in terms, it would have justified the jury in supposing that the houses, in which the appellants resided, were not held adversely, though the lands inclosed for farming, and the lands which had been occupied in digging for gold were, and would thus have misled them. There was no error in its refusal. 3. Continuity is an essential element of the possession which bars the entry of the true owner, and ripens into a title in the adverse possessor. The unknown intrusions of mere trespassers will not interrupt the continuity, unless continued for such a length of time as to become assertions of adverse right. — Farmer v. Eslava, 11 Ala. 1028. The entry of -Dothard, if not on that part of the land of which Den-son had actual possession, was not an interruption of his possession, and worked no change in its character. It was not an invasion of Denson’s rights, as dependent on his possession, and gave him no cause of action, or opportunity of asserting his claim. The second charge requested was, therefore, properly refused. It was properly refused, also, because the entry of Dothard may have been but momentary, without Denson’s knowledge. 4. It may be that one or more of the charges given, on the request of the appellees, had a tendency to mislead the jury. That, however, is not a reversible error; the appellants should have requested explanatory instructions. — ;1 Brick. Dig. 344, § 129. It cannot be affirmed that either of these charges is erroneous in the statement of legal principles. The judgment is affirmed.