Opinion
8 Div. 99.
May 1, 1919. Rehearing Denied May 22, 1919.
Appeal from Circuit Court, Lawrence County; Robert C. Brickell, Judge.
W. T. Lowe, of Decatur, for appellants.
Eyster Eyster and G. O. Chenault, all of Albany, for appellee.
In this action, the plea of not guilty embraced all the defenses sought to be interposed under the special pleas, and there was no error in the ruling of the court sustaining the motion to strike such pleas.
The book offered in evidence by the defendant, as appears in the statement of the case, was not shown to be an authentic record of any court, or any department of the government, and there was clearly no error in its exclusion.
The deed from the South North Alabama Railroad Company to the plaintiff in this cause contained a sufficient description of the land, in connection with the evidence offered, to pass the legal title, and the objection thereto was properly overruled. Chambers v. Ringstaff, 69 Ala. 140; Jenkins v. Woodward Iron Co., 194 Ala. 371, 69 So. 646; Angel v. Simpson, 85 Ala. 55, 3 So. 758.
This brings us to a consideration of the pivotal question in the case. There seems to be no serious controversy that the evidence offered by the plaintiff was sufficient to show the legal title in the plaintiff, which title passed to its grantor in May, 1896. Price v. Dennis, 159 Ala. 629, 49 So. 248; Stein v. England, 202 Ala. 297, 80 So. 362.
It is conceded that prior to said time the title was in the government, or in the state of Alabama as trustee, and that therefore, under the above-cited authorities, the land was not subject to taxation, and title thereto could not be acquired by adverse possession. Stein v. England, supra. The defendants offered to show, however, a sale of the lands and taxes assessed to "owner unknown" in 1891, and the deed of the judge of probate of Lawrence county pursuant thereto, executed in 1893, that the purchaser went into possession of the land under said deed, remaining in possession subsequent to the year 1896, and successive conveyances of said land and possession of grantees under their respective deeds up to the conveyances to the defendants in this cause.
The court sustained the plaintiff's objection to the testimony offered upon the theory, as we gather from the record and briefs of counsel, that the lands were not subject to taxation, and could not be adversely held at the time of the tax deed because the title was in the government, and that therefore the possession of said purchaser at the tax sale could not become adverse to one acquiring title to said lands from the government. It was directly stated, and proof offered by defendants with this express understanding, that the deeds offered in evidence by the defendants were not offered for the purpose of showing title, but merely as color of title, in connection with the proof of adverse possession subsequent to May, 1896, when plaintiff's grantor acquired title, to all of which plaintiff's objection was sustained.
That the tax deed conveyed no title was, of course, quite clear, but this did not affect its value as color of title, for, as said by this court:
"An absolutely void instrument may be good color of title. 'Color of title' is said to be that which in appearance is title, but which in reality is no title." Crowder v. Doe ex dem. Tenn. C., I. R. R. Co., 162 Ala. 151, 50 So. 230, 136 Am. St. Rep. 17.
See, also, Saltmarsh v. Crommelin, 24 Ala. 347; Doe ex dem. Hughes v. Anderson, 79 Ala. 209.
The question here involved was considered by the Supreme Court of Iowa in the case of Chicago, R.I. P. Ry. Co. v. Allfree, 64 Iowa, 500, 20 N.W. 779. The opinion of that court recognizes, of course, the well-understood rule that possession could not be adverse so long as the title remained in the government. and that such a one in possession could never invoke the statute of limitations or the doctrine of adverse possession. The opinion then proceeds:
"But there is no law which forbids a citizen to hold land in that way against the grantee of the government. When the certification of the land was made, the statute began to run. The fact that defendant's prior possession could not have aided him to plead the statute against the government is no reason why he cannot plead his possession held after plaintiff acquired title. If defendant's possession began after plaintiff acquired title, it cannot be doubted he could do so. As against plaintiff, defendant's possession did begin afterwards."
It is conceded that the title passed to the South North Alabama Railroad Company in 1896, and while the possession under color of title could be of no avail to the possessor prior to said date, yet, as stated in the foregoing quotation, there is no law which forbids the holding of land adversely to the grantee of the government; and we are therefore of the opinion the defendants should have been permitted to offer proof as to the tax deed as color of title, and possession thereunder in connection with the other deeds offered in proof, together with the evidence in regard to possession by the respective parties to the conveyances subsequent to the acquisition of title by the South North Alabama Railroad Company in 1896.
We approve the reasoning and holding of the Iowa court in the above-cited case, and think it directly applicable here, and, indeed, we are cited to no authority in conflict therewith. See, also, in this connection, Schneider v. Hutchinson, 76 Am. St. Rep. 483 (note).
We are therefore of the opinion that the court below committed error as to these questions of evidence, which are sufficiently disclosed in the statement of the case, for which the judgment must be reversed.
There is some suggestion in brief of counsel for appellee that it is not shown the provisions of section 2830 of the Code of 1907, in regard to the recordation of the color of title, was complied with, and the case of Kilpatrick v. Trotter, 185 Ala. 546, 64 So. 589, is cited. There was no objection upon this ground, or suggestion as to this, in the court below, and it would appear from the evidence offered that defendants sought to establish adverse possession for a period of ten years subsequent to the year 1896, and previous to the adoption of the Code of 1907. Mobile G. R. R. Co. v. Rutherford, 124 Ala. 204, 63 So. 1003.
For the errors indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.