Burks v. Mitchell

SOMERVILLE, J. It may be admitted to be a settled rule of law in this State, that an adverse possession of land, which continues unbroken for ten years, will confer a title which will sustain as well as defeat an action of ejectment. As said in Barclay v. Smith, 66 Ala. 230, it “armssuch holder with all the powers of offense and defense which an unbroken chain of title confers.” — Farmer v. Eslava, 11 Ala. 1028 ; State v. Conner, 69 Ala. 212. The record shows that the plaintiff, Burks, lias not had adverse possession of the lands in controversy for so long a-period as ten years. Admitting, therefore, that the instrument under which he held, by attempted conveyance from Bullard, constituted color of title, and that his occupancy of a part of the lands was extended by this defective paper writing so as to be co-extensive with the entire déscribed premises, he can not recover on the strength of his own possession alone. This, as we understand it, he does not seek to do ; but the effort is to supplement his possession, by connecting it with that of his alleged vendor, Bullard, so that the two possessions coupled together shall extend back, and thus cover the requisite period of ten years, upon the strength of which it is contended the present action can be maintained. If, then, Bullard never had adverse possession of the entire tract sued for, including the uninclosed woodland, no recovery can be had by the plaintiff, and the charge given by the court must be adjudged free from all error ; a right of recovery to a part having been expressly waived by the plaintiff in juclicio, unless there could be a recovery for the whole. The premises sued for are shown to have been a portion of the public school lands conveyed by the General Government to the State, as trustee, for the use of schools, prior to the year 1830. The appellee, who was made defendant in ejectment, is shown to have been in possession of the lands as superintendent of public schools for the township, having recovered them recently from the plaintiff in a statutory real action. Bullard appears to have been a mere intruder on these lands taking possession, without color of title, in the year 1861. Of the whole tract in controversy, which embraces one hundred and sixty acres, only fifteen or twenty acres were cleared, inclosed by fence, and cultivated. The remainder was uninclosed wood-land, not separated in any way from adjoining lands of the same character. Bullard had a dwelling-house upon the cleared portion, with out-houses attached. He is not shown to have exercised any other act of ownership over the woodland, except to cut timber, from nearly every part of it, “for farm and house purposes,” during the six years of his alleged [64] possession, extending from 1861 to 1867, when he sold to the plaintiff. There is an important and well-settled distinction between the possession taken of land by one who enters with color of title, and one who enters without it. -The possession of -the latter, when claimed to be adverse, is confined to the premises actually occupied by him — or strictly to a possessio pedis; whereas the possession of the former is generally construed to be co-extensive with the boundaries described i-n the written instrument under which he claims title. — Dothard v. Denson, 72 Ala. 541; Angell on Lim. p. 401, § 400 ; Buchanan v. The State, 73 Ala. 47, 50 ; Bell v. Denson, 56 Ala. 444 ; Trial of Title to Land (Sedgw. & Wait), 766-7; Stovall v. Fowler, 72 Ala. 77. Under this principle, Bullard’s possession must be confined to the cleared portion of the land which he had inclosed by fence and actually occupied. The cutting of timber on the uninclosed wild lands, without anything to define the extent of the alleged claim, was not alone such evidence of ownership as to amount to possession adverse to the true owner. Tt could not, therefore, operate as a disseizin against him, noraid in any manner in supplementing the time necessary to bar the rights of the holder of the legal title.— Childress v. Calloway, 76 Ala. 128 ; Clements v. Hays, 76 Ala. 280 ; Parker v. Parker, 1 Allen (Mass.) 245 ; Hale v. Gliddon, 10 New Hamp. 397. In our opinion, the charge of the court was free from error, and the judgment is affirmed.