Dothard v. Denson

BRICKELL, C. J. The present statute, in regulation of the right of parties to civil causes to demand a struck jury (Code of 1876, § 3018), is not materially variant from the former statute' (Olay’s Dig. 459, § 52). "When the right is demanded, neither party,—whether it is the party making the demand, or his adversary,—is to be subjected to the hazard of being compelled to submit the issue to the verdict of jurors who may be of the regular panels in attendance upon the court, and yet subject to challenge because of bias or interest as to the particular case.—Davis v. Hunter, 7 Ala. 135. The right of the parties to a jury free from bias or interest is not lost, nor subjected to chance or peril, because one party, in the exercise of a legal right—exercised, it is presumed, that an impartial jury may be secured—demands a struck jury. Jurors who were members of a former jury, to whom the cause had been submitted, discharged,' and a mistrial had, because the jury could not agree, are not competent jurors upon a subsequent trial of the cause; ■ they are not impartial—free from the bias of formed opinions.—Smith v. State, 55 Ala. 1. The Circuit Court erred, in not excluding from the panel the two jurors to whom objection was made. 2. Prima facie, the sale of the lands by Putnam to Pettitt was irrelevant. If evidence of the sale had been offered, in connection with evidence that Pettitt subsequently sold to Den544 son, and that he entered, claiming possession and title from the sale, the evidence would have been relevant. That there was no written evidence of sale, would not have been material. A claim of title, rendering a possession adverse, may rest upon a sale of which there is no written evidence. The writing may be essem tial, to render the title valid ; but it is not the validity of the title claimed, which is an element of adverse possession. The claim, and intention to claim title and possession, however the title may be derived, distinguishes the possession from that of a mere trespasser. But the evidence, not having been offered in connection with evidence of this character, and no such evidence having been subsequently adduced, was improperly admitted.—Mardis v. Shackelford, 4 Ala. 493; Bates v. Terrell, 7 Ala. 129. 3. The declarations of Denson, that he bought the land from Pettitt, and of the price he paid, were inadmissible. The declarations of a party in possession of property, real or personal, explanatory of the possession, are received in evidence on the principle of res gestae. — 1 Brick Dig 843, §§ 558-59. But his declarations merely narrative of past transactions, or respecting the source of the title, or the contract by which possession was acquired, are inadmissible.—Ib. 843, § 560. 4. The principal point of contention in the Circuit Court was directed to the character of the possession of the premises by one of the defendants. It seems not to have been disputed, that the possession had been continued for a period of time which barred the true owner of the right of entry, and would be protected by the statute of limitations, if it was adverse. Numerous instructions were given and refused upon this point, which are now assigned as error. It would not serve any useful purpose to consider them separately. There are a few. general principles governing this question, illustrated by repeated decisions of this court, which were not observed in the giving and refusal of several of these instructions, and observance of which, upon another trial, will lead to a just determination of the cause. The mere possession of land is not prima facie "adverse to the title of the true owner All presumptions and intendments are favorable to the title, and possessions are not presumed to be hostile, but rather in subordination to it. Asto-an intruder, or trespasser, or as to one who does not show a 'better right, possession of lands, like the possession of personal property, is prima facie evidence of title, and will support ejectment. But, though this presumption attaches to the possession — that it is an occupancy by right — the presumption disappears in the presence of the title. When the title is shown not to attend'the possession, but that it resides in another, the law, not favoring [545] wrong, will not presume that the possession was taken, or is held and claimed, in hostility to the title. The burden of proving the possession adverse — that it was taken and held under a claim of title hostile to the title of the true owner- — rests upon the party asserting it.—Brown v. Cockrell, 33 Ala. 38; Herbert v. Hanrick, 10 Ala. 581; Ang. Lim § 385; 2 Smith’s Lead. Cases, 642. A material inquiry in this cause — one the jury will not fail readily to solve, under proper instructions — is, whether the defendant, Denson, entered upon the lands in good faith, claiming title to them; and whether the possession and claim was continuous and uninterrupted, for the period of ten years before the commencement of this suit. We say in good faith, claiming title • but we must not be understood as saying, that the inquiry as to good faith in claiming title involves an inquiry into his belief in the strength of his title, or that he had any title. It is good faith in claiming possession and title — the real intention to claim the possession as his own, distinct from, and hostile to4 the title of the true owner. If that was not his real intention, there is an absence of an indispensable element of adverse possession. The true owner, it may be, during any period of the possession, could have resorted to legal remedies, and ejected him. But he was not bound to resort to such remedies ■ — it rested in his election, whether he would treat the possession taken without claim of right, and not in hostility to his title, as an ouster or disseisin, or as dependent upon his pleasure for its continuance.—Ang. Lim. § 387; Farmer v. Eslava, 11 Ala 1028; Ormond v. Martin, 37 Ala. 598; Manly v. Turnipseed, 37 Ala. 522. 6. The whole doctrine of adverse possession rests upon the presumed acquiescence of the party immediately affected by such possession. Therefore it is, when possession of property is originally held and acquired in subordination to the title of the true owner, to constitute the continued possession adverse, there must he a disclaimer of the title of him from whom the possession was acquired, and an actual hostile possession of which he has notice, or which is so open and noto ions as to raise a presumption of notice.—Lucas v. Daniels, 34 Ala. 188; Shelton v. Eslava, 6 Ala. 230; Alexander v. Wheeler, 69 Ala. 332; Johnson v. Collins, 57 Ala. 304. If Denson originally entered upon, and acquired the possession of the lands, by the permission of Dothard, he entered in subserviency to his title Unless he has subsequently, and continously for the period of ten years, openly disclaimed and disavowed the title of Doth-ard, asserting an adverse right and title in himself, of which notice is brought home to Dothard, there is no foundation for [546] the operation of the statute of limitations.—Zeller v. Eckert, 4 How. 289. If, during the period of the possession, Denson declared that the lands were Dothard’s, or that he was holding under Doth-ard, or by his consent, the possession was permissive, not adverse. Nor will a continued possession after such declarations avail to mature a title under the statute of limitations, unless Denson changed the character of his possession by disavowal and disclaimer, or by the exercise of acts of ownership inconsistent with a possession in subordination to the title, of which Dothard had notice. — Ang. Lim. § 384. And the declarations of Denson while in possession, that he had no title, or that he did not claim title, whether his possession was or not by permission of Dothard, are evidence that his possession was not adverse, capable of maturing into title under the statute of limitations. — 2 Smith’s Lead. Cases, 642. The rulings of the Circuit Court were inconsistent with these views, and its judgment must be reversed, and the cause remanded.