Opinion
6 Div. 46.
December 17, 1931.
Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.
R. A. Cooner and M. B. McCollum, both of Jasper, for appellant.
The former judgment in this case is no evidence of title nor bar to a subsequent action. Hale v. Chandler, 180 Ala. 391,
61 So. 885; Boyle v. Wallace, 81 Ala. 352, 8 So. 194; 34 C. J. 947. Prior to the adoption of section 3839 of the Code of 1907, a conveyance of land held adversely was void as to the adverse holder. Curtis v. Riddle, 177 Ala. 128, 59 So. 47; Grant v. Nations, 172 Ala. 83, 55 So. 310; Davis v. Curry, 85 Ala. 133, 4 So. 734. The change in the law has no application to deeds made before such change became effective. Therefore, the grant from the state to appellee in 1905 would be void if appellant held adversely at the time. Burnett v. Roman, 192 Ala. 188, 68 So. 353; Grant v. Nations, supra; Curtis v. Riddle, supra. To render such deed void it was not necessary to show such adverse possession was under color of title or that claim in writing had been filed. Mahan v. Smith, 151 Ala. 482, 44 So. 375; Gerald v. Hayes, 205 Ala. 105, 87 So. 351; Vandiveer v. Stickney, 75 Ala. 225; Sharp v. Robertson's Ex'rs, 76 Ala. 343. Under the Code of 1896, in effect when the state conveyed, adverse possession would run against the state. Code 1896, § 2794. Although actual occupancy is necessary, this may be through a tenant. Bernstein v. Humes, 60 Ala. 582, 31 Am. Rep. 52. It was error to admit in evidence the patent from the United States to the state of Alabama. Henry v. Brannan, 149 Ala. 323, 42 So. 995; Acts 1861, p. 12; Acts 1886-87, p. 73.
Davis Curtis, of Jasper, for appellee.
Under 30 U.S. Stat. 837, where land selected by the Governor was certified and patent issued, further inquiry into the legal title of such land was concluded. The title of the party claiming under that act could not be attacked by proof that such land was not occupied and uninhabited when selection by the Governor was made. No adverse patent could arise within ten years from the issuance of patent. Bonner v. Lockhart, 177 Ala. 103, 59 So. 51; L.R.A. 1918D, 597, notes, McCormick v. Hayes, 159 U.S. 332, 16 S.Ct. 37, 40 L.Ed. 171. The claim of purchase was not bona fide, being only for the improvements on government lands. Neither the state nor Lockhart held through those from whom Bonner claims to have purchased. Therefore, the extent of his possession could not be the boundaries of the tract, but only to so much as he actually had in possession. Howell v. Henry, 157 Ala. 43, 47 So. 132; Tennessee Coal Iron Co. v. Linn, 123 Ala. 112, 26 So. 245, 82 Am. St. Rep. 108; 15 L.R.A. (N.S.) 1178, note. The rule that a deed made by one out of possession was champertous and void as against the adverse holder was abolished by Code 1907, § 3839. While the deed from the state to Lockhart was made before the adoption of that Code, yet the possession requisite to render a deed champertous is in all respects the same as that essential to put in operation the statute of limitations. Grayson v. Muckelroy, 220 Ala. 182, 124 So. 217; Witherington v. White, 165 Ala. 316, 51 So. 726; Nichols v. Nichols, 179 Ala. 611, 60 So. 855; Williams v. Muckelroy, 221 Ala. 531, 129 So. 476. Ouster of appellant in 1913 constituted a break in his possession, and his possession in 1928, after that break, cannot be tacked onto his former possession. Appellant not having any written color of title, and as to appellee a trespasser, appellee was entitled to recover on appellant's admission of appellee's prior possession. Harsh v. Wald, 205 Ala. 526, 88 So. 844; Bowling v. M. M. R. Co., 128 Ala. 550, 29 So. 584; Branch v. Smith, 114 Ala. 464, 21 So. 423; Gist v. Beaumont, 104 Ala. 350, 16 So. 20; Grayson v. Muckleroy, supra.
This is an action of ejection for same land and between same parties as reported in 177 Ala. 103, 59 So. 51. It was there held that the attack made on the patent was without merit and that Bonner, the present appellant, could have no title by adverse possession.
It is insisted upon this appeal that the deed from the state to Lockhart was not valid because the appellant was in the adverse possession when the same was made, a point which seems not to have been decided in the former case. This is a question, however, we deem unnecessary to decide in order to affirm the judgment of the circuit court. The deed was admissible as color of title as against an unconfined objection, whether valid or not, so as to enable the appellee to come within the influence of section 6069 of the Code of 1923 as to adverse possession. Moreover, the appellee was put in possession under legal process.
The defendant, the appellant here, admitted that, as a result of the former judgment, the appellee was placed in possession of the land in 1913, and that he (the appellant) remained out of possession until 1928, fifteen years, making no effort in the meantime to regain the land or to assess the same for taxation. It is true he did not state that all the persons occupying the land between 1913 and 1928 were tenants or hands of appellee, but it does appear that Lockhart and his agent or tenant were placed in possession in 1913, and, in the absence of any proof that this possession was changed or broken, it will be presumed to have been continuous and that the parties cultivating and occupying the land were doing so under the appellee. So it matters not whether the deed from the state was made when the appellant was in the adverse possession of the land, as the appellee acquired a lawful possession of the land which was adverse and continuous, and he was not molested therein for fifteen years when broken by the entry of the appellant in 1928.
The trial court did not err in giving the general charge for the plaintiff, and the judgment of the circuit court is affirmed.
Affirmed.
THOMAS, BROWN, and KNIGHT, JJ., concur.