Nance v. Walker

ANDERSON, C. J. — This was originally an action for forcible entry and unlawful detainer, and was transferred to the circuit court under a petition to try title as provided by the statute (section 4283 of the Code of 1907) by one claiming to have entered upon the land peaceably and under claim of title thereto. (1) The appellant proved a prior possession under color of title to the land sued for, but as the title to the same was in the government during that time and never passed out of it until the issuance of the patent in 1913, he had no paper title, and did not acquire title by adverse possession. — Nelson v. Weakley, 177 Ala. 131, 59 South. 157; Swift v. Williams, 162 Ala. 147, 50 South. 123. (2) It is true that one claiming a prior possession under color of title can recover in ejectment against a trespasser, yet when the defendant is not a trespasser, but holds under color of title and also shows title out of the government in a party with whom the plaintiff did not connect himself, the plaintiff, in order to recover, is required to establish his title, and cannot recover merely upon the strength of his previous possession under color [220] of title. — Warten v. Weatherford, 191 Ala. 31, 67 South. 667; McCreary v. Jackson Lumber Co., 148 Ala. 247, 41 South. 822. The plaintiff not only failed to connect himself with the patentee, and which was fatal to his title, but the defendant went further than was necessary, and connected himself therewith. (3) It is true that the deed from Henry Weathers to the defendant’s grandfather was made long before the issuance of the patent to Weathers and his heirs, but we think that the said deed is so worded as to include and convey a subsequently acquired title to the land in question. It conveys: “All my right, title, interest, estate' claims and demand both at law and in equity as well as in possession or in expectancy of, in and to all that certain farm,” etc. — Garrow v. Toxey, 188 Ala. 572, 66 South. 443. It is insisted by the appellant that the defendant, Walker, is in no position to invoke the statute to try title: First, for the reason that at the time of his entry upon the land he did not do so under claim of.title, as the title was in the government; and, second, that even if he has title, he is not entitled to the immediate right of possession, for the reason that his father is.still living and has a life estate in the land which the said defendant inherited from his mother. (4) It is true that in order for the defendant to remove the cause into the circuit court, under section 4283 of the Code of 1907, he must aver and prove a peaceable entry upon the land under a claim of title thereto, but we think that these facts were established without dispute. The defendant had an inchoate claim or equity in the land, which ripened into the legal title upon the subsequent issuance of the patent. The fact that defendant’s father had a life estate in the land and was primarily entitled to the possession might be a barrier to a recovery by this defendant if he was the plaintiff in an action of ejectment, but would not preclude him from showing in this action that the present plaintiff had no title, and did not deprive him from being a bona fide claimant of title so as to prevent him from resorting to section 4283, and thus putting the plaintiff upon proof of his title. The case of Mallon v. Moog, 121 Ala. 303, 25 South. 583, is not in conflict with this holding. We think that the real effect of that holding is that one who enters as a bare trespasser cannot invoke the statute, even if he subsequently acquires a right or .title to the land, but do not think that it was meant to hold that one who [221] entered, under a claim of title, whether a complete legal one. at the time or not, was not entitled to invoke the statute, simply because the claim of title under which he entered was not complete or perfected until after the entry. The judgment of the circuit court is affirmed. McClellan, Sayre, and Gardner, JJ., concur.