Crosby v. Pridgen

SOMRBYILLE, J. — -The pleas of not guilty and of adverse possession admitted possession of the entire tract of land sued for in the action. They were repugnant to, and inconsistent with the plea or suggestion of disclaimer, which was applicable to only to a portion of the land. Under our practice, going to trial under these repugnant pleas operated as a waiver of the plea of disclaimer. — Alexander v. Wheeler, 69 Ala. 232; Bernstein v. Humes, 60 Ala. 582; Code, 1876, § 2963 ; Callan v. McDaniel, 72 Ala. 96. The rule is settled in this State, that peaceable possession of land by an actual occupant, who is in the exercise of acts of ownership or dominion over the premises, whether under claim or color of title, is ordinarily sufficient to authorize a recovery in ejectment, against a mere trespasser who intrudes on such prior possession of the plaintiff; and the party trespassing cannot defend successfully by showing an outstanding title with which he in no way connects himself.— Wilson v. Glenn, 68 Ala. 383 ; Russell v. Erwin, 38 Ala. 44; Bradsaw v. Emory, 65 Ala. 208. Trial of Title to Lands (Sedgw. & Wait) §§ 718-720. This is not repugnant to the more familiar and well established rule, universally recognized in cases of ejectment, that the plaintiff is required to recover, if at all, upon the strength of his title, and not upon the weakness of his adversary’s. The possession of the occupant, when accompanied by such acts of dominion as ordinarily evidence ownership, under claim of title, raises a presumption of title in the plain tiff, which continues until rebutted or countervailed by proof of title in the defendant.'— Wilson v. Glenn, supra. It is a subject of much controversy as to the precise character of the possession of land sufficient to raise this presumption without other proof of title. It has been said, in one case, that “there must be an actual Iona fide occupation, a possessio pedis, a subjection to the will and control, as contra-distinguished from the mere assertion of title, and the exercise of casual acts of ownership, such as recording deeds, paying taxes,” &c. — Plume v. Lenard, 4 Cal. 25. In another case it was held, that the mere staking off of land, without occupation or other acts of ownership, would be insufficient indicia of a possession such as is necessary to maintain ejectment, unless such acts were followed by other acts of ownership continuous in their nature. — Sankey v. Noyes, 1 Nev. 68. There are many acts which show claim of title, and yet fall far short of the dignity of legal possession. These are casual, as distinguished from continuous assertions of ownership, and may amount to the [388] most manifest acts of mere trespass. As said in Thompson v. Burhaus, 79 N. Y. 93, “passing around land or over it, asserting title ever so loudly, docs not give possession.” — -Trial of Title to Land (Sedg. & Wait) §§ 719-720. The only evidence of plaintiffs’ possession of the land in controversy is the fact that, more than ten years before the bringing of the present suit, he rode over the lands, claiming them as his own, and offering to sell them.- He was not, otherwise, in actual occupancy, either himself or by any tenant in possession. This casual assertion of title bears the appearance presumptively of a mere trespass. It was not a possession in the sense of oooupanoy, and is wanting in the semblance of those bona fide ear-marks of ownership which ordinarily manifest themselves in continuous assertions of title by acts of dominion inconsistent with ownership in another. If the court erred in excluding the void deed which purports to have been executed by Mary Leggett to the father of the plaintiffs — which it is insisted was color of title, and admissible to show the extent of plaintiffs’ possession — it was clearly error without injury. This deed proved no title in the plaintiffs, and the court would have been compelled nevertheless to charge the jury to find for the defendant, if they believed the evidence, as was done at defendant’s request upon the evidence disclosed iii the bill of exceptions. — Pearce v. Clements, 72 Ala. 256. We discover no error in the rulings of the court, and its judgment is affirmed.