Bailey v. Blacksher Co.

TYSON, J. The complaint, after amendment, contains four counts. The first three count upon a forcible entry and detainer, and the last upon an unlawful detainer. The plaintiff, if entitled to recover, must do so upon the counts declaring on a forcible entry and detainer, [257] since the testimony fails to show that defendant’s entry was by its consent. On the trial the plaintiff, a corporation, admitted to be the legal successor of the Dixie Mill Company, after offering evidence that it was, prior to the entry of defendant on the lands in controversy, in the actual possession of another portion of lands described in a deed executed by one Ferguson to its Dixie Mill Company, which also purported to convey the land, was permitted to introduce in evidence, against the objection of defendant, that deed as color of title. In this ruling there was no error. As said in Cunningham v. Green, 3 Ala. 130, “The’ plaintiff must have proved a possession, either actual, by having the land under his immediate control and dominion ; or constructive, by being iu possession of a part of the tract, under color of title for the whole.” — Turnley v. Hanna, 82 Ala. 139; Bohannon v. State, 73 Ala. 47; Stovall v. Fowler, 72 Ala. 77; Black v. Tenn. Coal, Iron & R. R. Co., 93 Ala. 109, 111. In the case last cited it is said: “Mere color of title does not draw possession to one who is not in or does not take actual possession of some part of the land conveyed; hut ‘possessio• pedis’ of any part of the tract conveyed, in law, is held to be the actual possession of the entire tract. It is not constructive possession, strictly speaking, but actual possession, that a party has under color of title of the premises conveyed. Technically speaking, in legal contemplation, there is no such thing as constructive possession under color of title.” In Stovall v. Fowler, supra, it was expressly declared that, when there is an entry on land under color of title by deed, in legal contemplation, there is “actual possession to the extent of the boundaries contained in the writing, and this, though the title conveyed is good for nothing.” Of course, the deed in this character of action cannot be looked to for the purpose of determining whether the plaintiff acquired a title to the land in controversy. To permit this to be done would violate Section 2135 of the Code, which prohibits the estate or merits of the title to be enquired into. But as we have [258] said, it was clearly competent evidence, as color of title, to show the extent of plaintiff’s possession claimed to the premises in controversy. — Turnley v. Hanna, supra. And we think the record sufficiently discloses the limitation upon its operation to this purpose. However, to entitle the plaintiff to recover, the testimony must establish such an actual possession to the land in controversy, as that if continued for the necessáry period, the possession would vest in him a legal title to it against the true owner, if there was such outstanding title to it. O’Donohue v. Holmes, 107 Ala. 489. This, of course, involves the issue of fact as to whether or not, plaintiff -claimed the land in controversy, notwithstanding it was embraced in the deed. Although it may be named in the deed, yet if plaintiff did not claim to be the owner of it, clearly its actual possession of another portion of the tract described in the deed, under the principle announced, cannot be extended to this land. In order to establish its claim of ownership to this land, the plaintiff, independent of the deed, offered testimony tending to prove this fact. However, in order to contradict this, the defendant introduced in evidence certain conversations had with the president of the plaintiff corporation and its superintendent with reference to a sale of this piece of land, which if believed by the jury, would have authorized them to construe what was said by each of these officers as disclaiming on the part of the plaintiff any interest in or claim to it. Of course, if the title had been in controversy and the plaintiff was not relying upon adverse possession to sustain its right of recovery, no declaration made by its officers to the effect that it did not own or claim to own the land would or could deprive it of a title acquired by a conveyance. But the question here under, consideration is one of actual possession and relying, as the plaintiff must do, upon an adverse possession any declaration, by an authorized agent, made for and in its behalf, tending to show that it did not claim the land, is evidence against it, upon the issue under discussion which the defendant was entitled to have the jury pass upon. [259] We are, therefore, of the opinion that the case should have been submitted to the jury, and that the affirmative charge given at plaintiff’s request was error. The deeds offered in evidence by defendant ■ were properly excluded. — Cunningham v. Green, supra. Reversed and remanded. McClellan, C. J., Simpson and Anderson, J. J., concurring.