
    Anglin v. Thomas.
    
      Trial of the Right of Property.
    
    1. Title; husband and wife. — When there is a controversy as to whether property belongs to the husband or to the wife, the possession of the husband is not adverse to the wife, and such possession is not evidence of the husband’s title.
    2. Same; same; repetition of charges. — A charge setting forth above principle, is not a mere repititiori of a charge that “the possession of the husband is the possession of the wife when the title to the property is shown to be in the wife,” as said last quoted charge ignores the consideration that the husband’s possession is not evidence against the wife’s title.
    Appeal from Jackson Circuit Court.
    Tried before the Hon. J. A. Bilbro.
    This was a claim suit between Mary Anglin, claimant, and Leonard Thomas, plaintiff. Attachment had been issued, on bond and affidavit by Thomas, and levied upon certain ^ property, which Thomas alleged belonged to Z. T. Anglin for $40.59 and costs, and on the trial of Mary Anglin’s claim in the Justice Court, neither the defendant nor the claimant appearing, there was judgment for the plaintiff. The case was carried to the circuit court on a writ of certiorari. There was conflict in the evidence as to the ownership of the property levied upon, which was in possession of the husband and wife, living together as such. The jury found for the plaintiff, and that the property was that of the husband, the defendant, and liable to plaintiffs attachment.
    On the trial of the cause, claimant requested the following charge: “When there is a controversy as to whether property belongs to the husband or wife, the possession of the husband is not adverse to the wife and such possession is not evidence of the husband’s title.” The court refused to give said charge, which refusal the appellant assigns as error.
    J. E. Brown, for appellant.
    There can be no title by adverse possession, between the husband and wife, while residing together, in that relation. — Larkin v. Baty, 111 Ala. 303; Stiff v. Cobb, 126 Ala. 381; Allen v. Hamilton, 109 Ala. 634; Bragg v. Massey, 38 Ala. 89; Newbrick v. Dug am,, 61 Ala. 251; Gifford v. Strau&s, 89 Ala. 283.
    Virgil Bouldin, contra.
    
    Possession is an act of ownership, and when coupled with evidence tending to show the husband acquired the property in his own right, in the first instance, possession may be looked to, in connection with evidence, on question of title. Jury was authorized to consider defendant’s possession and the character of his dominion over the property, when the wife seeks to hold it against a creditor of the husband. — Arnold v. Gofer, 135 Ala. 364.
   ANDERSON, J.

This Avas a claim suit between Mary Anglin, claimant and Leonard Thomas, plaintiff, growing out of the interposition of a claim to property levied on as the property of her husband, the defendant. There was conflict in the evidence .as. to the ownership of the property levied upon, which was in possession of the husband and wife living together as such. The jury found for the plaintiff, and that the property was that of the husband, the defendant, and liable to plaintiff’s attachment.

There are several assignments of error, but all seem to have been abandoned in the brief of claimant’s counsel, save the refusal of the court to give the following charge: “When there is a controversy as to whether property belongs to the husband or wife, the possession of the husband is not adverse to the wife and such possession is not evidence of the husband’s title.”

When two persons are jointly in possession of property, the legal title being in only one of them, the law relates the possession to the title, and when a husband and wife living together have a community of possession of property, the legal title to which is in the wife, possession of such property will be referred to the title. — Larkin v. Baty, 111 Ala. 303.

We cannot, therefore, see, when there is a community of possession, as in this case, that the possession of the husband would be adverse to the wife’s title or evidence against the same, and for that reason said charge should have been given.

Charges given at the request of claimant, doubtless put in the bill of exceptions to show us that the refused charge had been substantially given are considered. We are not unmindful of the rule that it sho-uld not work a reversal of the case when refused charges are but well repetitions of those given, even if not in the same language. — Smith v. State, 92 Ala. 30.

Charge 1, which is as follows, “The possession of the husband is the possession of the wife when the title to the property is shown to be in the wife,” is the only one that bears any similarity to the one in question and we do not see how it covers the salient features of the refused charge. This given charge ignores the consideralion of the husband’s possession as not being evidence against the wife’s title.

Reversed and remanded.

McClellan, C. J., Tyson and Simpson, J.J., concurring.  