Doe ex dem. Mills v. Clayton

STONE, J. — The plaintiff claims title under two demises; first, from Mills, and second, from Hooper. He offered no documentary title in either. He alleges, and offers some proof tending to show acts of ownership, or of possession, dating before any claim asserted by the defendants, or by Lyon, under whom they claim. The precise form in which ho seeks to establish this prior possession is, that as agent, or conditional purchaser from Mills, he placed tenants on the land, had improvments made, and that these tenants continued to occupy under him until the present action was brought — some ten years after the alleged taking of possession. The testimony on the question is by no means harmonious. Theie is testimony tending to show that Lyon first took possession, and had the improvements made, and that his tenants, entering under him, have had possession ever since. This presents a question of inquiry for the jury. If the proof establishes the plaintiff’s phase of the question, thus showing prior possession under claim of title, or by exercising acts of ownership through himself or tenants, then he showed a prima facie right of recovery. [361] 1 Brick. Dig. 627, §§ 40, 41; Anderson v. Melear, 56 Ala. 621. If the testimony fails to show such prior possession, then plaintiff has no right to recover, even against a naked trespasser. If, under the rules stated above, the plaintiff makes out a ■prima faeie case to the satisfaction of the jury, then the mat- ' ter of defense will become important. The defense rests on a tax-title, executed to'A. It. Lyon, April 4th, 1872. If the said A. It. Lyon took possession of the lands, either by himself or tenants, under that deed ; or, if having previously taken possession, he continued in such possession rmder that deed, and if such possession was under claim of right in himself, and not for, or under another, then such possession put the statute of limitations in motion in favor of Lyon, from the date of his possession under the deed. — Jones v. Randle, 68 Ala. 258. And if that possession continued for five years before this suit was brought, it is a complete bar to the action, without any reference to the regularity of the proceedings under which the lands were assessed or sold. A question is sought to be raised, that inasmuch as Lyon, the tax-purchaser, died in less than five years after he obtained his tax-deed, and inasmuch as he had, before his death, conveyed the lands to his infant child, that intercepted the possession, and prevented the bar from becoming complete. In aid of this argument it is claimed and shown that the grantee was and still is an infant, and has no guardian. In connection with this it is further testified to, that Mrs. Lyon, the widow, and mother of. the infant grantee, administered on the éstate of her husband, and that she continued to exercise control of the lands, receiving the rents from the same tenants, who, it is claimed, had first acquired possession as tenants of Lyon, the tax-purchaser. If the tenants entered originally under Lyon, and held under him when he conveyed the lands away, there was no necessity for attornment. Continuing in possession afterwards under a lease or right to occupy, acquired from A. B. Lyon in his life-time, if such be the facts, converted them into tenant's of the then holder of Mr. Lyon’s title, whether that holder was heir, devisee, ■or grantee; and that without attornment. — Code of 1876, § 2177; Boyd v. Hunter, 44 Ala. 705; Norwood v. Kirby's Adm'r, 70 Ala. 397; Houston v. Farriss & McCurdy, 71 Ala. 570. The foregoing questions are the controlling ones in this case, and confine the inquiry to few contested questions of fact. A great many exceptions were reserved to the rulings of the court on testimony. In excluding from the jury the various papers alleged to have been signed by the tenants, acknowledging that they had originally received possession from Hooper, the court did not err. They were, at most, unsworn statements of a past transaction. But testimony of what Lyon or his [362] brother, or any other person said, as to the purpose for which he said he was going on the lands, or as to rents received, were all inadmissible, and should have been ruled out. Possession is a fact, and must be proved as other facts are proved; by legal evidence. After the cross-examination of the witness Ilavs, the court should have excluded from the jury his testimony, “ that A. R. Lyon collected rent from the place sued for each year from 1871 to 1876.” The cross-examination proved this witness had no person knowledge that any rent had been paid for either of those- years. All testimony of the class above noted should have been excluded. Some of the charges are not reconcilable with these views. We need not particularize. Reversed and remanded.