Wiggins v. Kirby

HARALSON, J. — The cause was tried and determined on the plea of the general issue, and that the defendant and his grantor had been in the adverse possession of the land for ten years. The facts in the case show, that the quarter section of [265] land entered by said Wiggins, as and for his homestead, and to which, as such, he received a patent from the Government in February, 1887 — the west half of which is sued for in this action — was, for years before the patent issued, and afterwards while he lived, occupied’ by him as a home or dwelling place for himself and family. The acts relied on by the defendant to show adverse possession by him and Agee, from whom he derived possession, and under whom he claims title, do not, in any case constitute adverse possession. We have too often decided the question to again discuss it, that the mere possession of land is not prima facie adverse to the true owner ; that to have that effect it must be hostile, actual, visible, notorious and continuous. — Norment v. Eureka Co., 98 Ala. 181, s. c. 104 Ala. 625 ; Parks v. Barnett, 104 Ala. 488 ; Merritt v. Phenix, 48 Ala. 87. The acts of Mr. Agee were merely casual. Indeed he never was on the land himself, and the only act of possession by him, as shown, was that he authorized some parties to go on it and get some timbers, which they did, and went away. It was not shown that the party that he requested to look after the premises for him ever went near or on it. Under any phase of the case, even if it were conceded that plaintiff’s ancestor, before the patent issued to him, had been the legal owner of the land, there is no legal pretext for the claim of adverse possession as was relied on to defeat this action. But, the undisputed fact is, that the legal title remained in the Government, until the 18th of February, 1887, when a patent issued to Elijah D. Wiggins, the ancestor of appellant, through whom both parties claim, and until that date, no adverse possession could run in favor of or against any one.— Wagnon v. Fairbanks, 105 Ala. 527. There was no proof, then, on which to base the plea of adverse possession for ten years before suit brought. And the court having excluded the deed offered by defendant from said Elijah D. Wiggins to N. A. Agee, the defendant’s grancor, the defendant was left without proof of any title to the land except that of N. A. Agee to him, of December 15th, 1888. There was no proof to show that Agee ever had any title, audit was shown that the plaintiff held the title of said Elijah D. Wiggins, which entitled him to recover. [266] The general charge should have • been given for the plaintiff. Reversed and remanded.