
    Chastang v. Chastang.
    
      Statutory Action in the 'Nature of Ejectment.
    
    1. Adverse possession; elements of. — ¡To constitute adverse possession the possession must be (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; (5) continuous. If any of these constituents be wanting the possession will n-ct effect a bar to the legal title.
    2. Same; same; evidence as to exact boundaries of land. — The party claiming to hold adversely must show by some evidence that he is holding the particular piece of land to which he claims title, and there must be evidence showing the exact boundaries of the land claimed by him.
    3. Same; cutting of timber as evidence of claim of ownership. — A continuous and persistent cutting of timber from a tract of land, will ripen into title'by adverse possession, if the cutting is done in such a way as to advertise to the world that the party is occupying the entire tract and is claiming it as his. own, but evidence as to indiscriminate cutting of timber, without designating .the particular place, how often cut at that particular place, nor how much land was cut over, without evidence of the continuous exercise of the right, will not constitute adverse possession.
    4. General charge; when should be given. — When from the whole evidence there is an entire absence of any fact which is essential-to recovery, the court should, on request in writing, give the general charge in favor of the defendant.
    5. Payment of taxes as evidence of claim of oionership. — The payment cf taxes is not evidence of possession, but, in connection, with evidence of actual possession, is admissible to show claim c-f ownership and the extent off the possession.
    6. Tax receipt; method of proving. — The receipt of a tax collector, unless it be an ancient document, is not self-proving and must be proved just as any other receipt.
    7. Payment of taxes; hearsay. — In an action in the nature of ejectment, a question as to whether the witness had ever heard • her father say that he had paid taxes on the land calls for is hearsay testimony.
    8. Insufficiency of constructive possession to establish adverse ’ possesion. — Where a party holding .the legal title to a piece of land lias constructive possession of sucli land, no- subsequent constructive possession by another, even under the color of title, can overlap his possession. .
    9. Possession Toy holder of legal title; dar to adverse possession. If the holder of the legai .title to a piece of land, enters thereon, under claim of right, and holds possession, though only for a day, and even jointly with the other party, it is nevertheless an interruption of continuous adverse possession of the other party.
    Appeal from the Circuit Court of Mobile.
    Tried before the Hon. Wm. S. Anderson.
    This was a- statutory action in the nature of ejectment brought by the appellee, Pauline Chastang, against the appellant, Adele Chastang, and sought to recover a tract of twenty-four acres of land. The title; of the plaintiff was based on a claim of adverse possession of over twenty years, by herself and her father, Theodore Collins. The defendant; claimed under a complete paper title from the United States Government, being a patent issued to her father, Zeno Cliastang, on November 15, 1854. The plaintiff introduced evidence showing that her father entered on the land in question about forty-five years before the commencement of the suit; that he; built a house thereon and enclosed about four acres with a rail fence; that as to this, four acres his possession was open-and exclusive, and as to this four acres the defendant admits plaintiff’s title. The evidence for the plaintiff further tended to show that her father entered on the land, under the United States patent, built a house on a portion of it, in which he lived until his death and which has since been occupied by his family. As to- the remainder of the twenty-four acres in controversy, outside of the Collins enclosure, the evidence is in conflict, though it is shown that both parties cut fire-wood therefrom, at various times and in various portions thereof. The witness Pierce Chastang for the defendant testified that he had lived with his father, Zeno' Chastang, and that his father had cut wood' off the land, in controversy as often as he wanted; that he continued to do so up to his death;1 and that he, the witness, cut some of it. The defendant asked, “How often did bo get fire-wood there?” The court sustained plaintiff’s objection to this question, to which defendant excepted. The other evidence and facts are; sufficiently set out in the opinion.
    The court gave the jury the following charge ex mero motu: “The possession of the land, if it is under1 color of title, that is, if possession is taken under a paper purporting to be a deed, describing the land, and the grantee goes into occupancy of a part of the lands described in the deed, and claims the whole tract, such possession would be constructive possession of the whole tract, and if continued for ten years without in-, terruption, would ripen into an indefeasible title. So the possession of Pauline Chastang under that deed from her brothers and sisters, if it began and continued for ten years without interruption, would give her a title by adverse possession. If her possession was interrupted in 1898, that was not ten years from 1890, the date of the deed. If her possession had not been interrupted for a couple of years longer, so as to complete the ten years, she would, haye acquired title by such possession of a part of the land. This is a good illustration of possession under color of title. If she went into possesion of a part of the land described and claiming the whole tract so described, that would be possession under color of title, but the possession was interrupted by the building of the wire fence in 1898, so' that does not conclude this case.” Defendant excepted to above charge (assignment of error No. 25). The, court thereupon stated to the jury that he did not intend to instruct them as to who was in possession; that that was for them to determine under the evidence, and added, “Where a party comes into possession under a conveyance, although that conveyance may be void, and takes possession of paid of the land, claiming it all, that possession is extended to whole of the land so described in the deed, except such part as may be in the adverse possession of somebody else. The court, at tlie request of the plaintiff, charged the jury as folloivs: “The court charges the jury that if they believe from the evidence that Zeno Chastang knew Theodore Collins was claiming the land, in dispute1, and admitted bis claim, the acts of possession thereafter by Zeno on other portions of the land conveyed by the patent would, not be acts of possession of the lands in dispute, even though such land is embraced in such patent.” The defendant excepted to the giving of the foregoing charge (26th assignment of error.) The defendant requested the court to give' the following charges, to the refusal of which defendant excepted: “The court charges the jury that they cannot, under the evidence in this case, find for the plaintiff as to any land, which was not included within the rail fence which surrounded the house of Theodore Collins, or within the fence, surrounding the garden or field of the plaintiff, Pauline Chastang.” (27th assignment of error.) “The undisputed evidence in this case shows that the heirs of Zeno Chastang were, at the time that the deed to' the plaintiff was executed, in the actual possession of a paid of the land described in the patent which covers the land involved in this suit, and the plaintiff’s deed, therefore, did not operate to extend 'the plaintiff’s actual possession over any of the other lands of which she was in actual possession.” (28th assignment of error.) “The court charges the jury that neither Theodore Collins nor any of his childen could obtain title to- any part of the land in suit without having the exclusive, adverse possession thereof for a continued period of ten years, and in order to establish such exclusive possession, it must be established reasonably to the satisfaction of the jury, that neither Zeno Chastang nor any of his heirs claiming under him were permitted to enjoy the possession thereof under their title even for a single day during the ten years, or even jointly or in common with the plaintiff’s father.” (29th assignment of error.) There were verdict and judgment for the plaintiff. The defendant appeals and assigns as error the various rulings of the court, to which exceptions were reserved.
    GubgoRY L. & H. T. Smith, for appellant.
    Adverse possession must be open, notorious, exclusive and continuous. Any possession is presumed to be subservient. to that of tlie riglitful owner until it is affirmatively shown to have been exclusive of him. — Kerr v. Nicholas, 88 Ala. 850; R. R. Go. v. PUlycm, 88 Ala. 268; Aleman-der v. Sewage, 90 Ala. 383.
    A tax receipt stands upon no other or different basis from an ordinary receipt from a private person. A receipt is only admissible against the: party from whom it proceeds; as against all other persons, it is hearsay.
    The actual possession of a, part of a tract under a patent to the whole extends the boundaries of the possesion to the boundaries of the deed. Where two constructive possessions overlap each other, the party avIio first acquires constructive possession must be regarded as continuing in possession of the whole tract described in his deed until he is' actually ousted. — 1 Am. & Eng. Ency of Law, § 871; Sedgwick on Trial of Titles to Land, § 752. Unbroken possession must continue ten years to constitute adverse possession. — R. R. Go. v. Philyato, 88 Ala. 268.
    No counsel marked as appearing for appellant.
   SIMPSON, J.

This was an action, in the nature of an action of ejectment brought by appellee, Pauline Chastang, against appellant, Adele Chastang.

The title of the plaintiff was based on a claim of adverse possession of twenty years, while the defendant derived her title through her ancestor who held a complete paper title from the United States Government, being a patent from, the Government to her father, dated November 15, 1854.

There is no pretense that, any of the land, except three or four acres, (to which appellant admits adverse possession Avas established) has ever been enclosed until about five years ago, Avlien the defendant enclosed i t, by building a wire fence.

It is proved also that defendant’s father, Zeno Chas-tang, took possession of the tract of land under the United States patent, by building ón a portion of it, a house, in Avhich he and his family continued to live, successively up to the time of the commencement of this suit.

The plaintiff proved that her ancestor, Theodore Collins, had a house on the three or four acre tract, which was enclosed by a fence, and that he lived there most of his life, having entered it about forty-five years ago, but, short time before he died he moved away and lived with his daughter, the plaintiff, on another tract of land. Rut it seems to he proven, by the evidence that, as to the three or four acre tract, the adverse possession was continuous. As to the remainder of the tract, the son of Theodore Collins testified that his father claimed a strip of about twenty-four acres, but he does “not know exactly where the line is,” blit told him “not to go west of a certain tree,” which tree was about thirty-five feet from where the wire fence now is, but . the witness does not say in what direction. He states that the land which his father claimed ran north and south, with a branch on the north.

He and other witnesses testify that, at different times Theodore Collins cut fire-wood for his own use and for selling to the steamboats, and rail timber, from the land outside the rail fence.

There is no testimony showing any acts indicating any distinct boundary to the land supposed to have been claimed by’Theodore Collins, nor do the witnesses testify definitely as to just, where he cut wood, except that most of them say he cut wood outside the rail fence; one says he cut some north and some south of the rail fence, the plaintiff says he cut wood all over it, and one witness says he cut wood “in any old place.”

The witness Andre, who is eighty years of age, states that Theodore Collins has been dead twenty-five years; that he lived on the land described in the complaint over twenty-five years; that he was in possession of the land described from the time he moved on it ’till he died. Zeno Chastang (father of defendant) lived on the place west of Collins: witness heard a conversation between Collins, and Zeno Chastang, in which Zeno pointed out the line, and told the boys who* were cutting timber, “This is the land, that on the west is my land, don’t go over there, on the other sidei is Collins.’” Witness describes this! land as being about a. quarter of a mile from tlie lower corner to the upper corner, nearly square, a littlei larger north and. south than east and west. He states also that Zeno required Collins to move his fence, so that each man should ‘‘have his own fence about his own land," and that this was done leaving the alley between them. This was about forty years ago, “before the Avar.”

There seems to 1m; no proof of any acts of ownership by the heirs of Collins, since his death, except that his son-in-law, Juzang, and his sons lived in the house, and did not use, the land (outside the enclosure) except to get fire Avood, and that a man named Graham occupied it for a while and one of the AA'itnesses got some poles once for Graham to repair the fence; that the Avitness Avas stopped from getting rails on said land, about thirty steps south of the Collins rail fence by defendant, she claiming That it Avas her land.

The defendant’s Avitnesses sIioav that Zeno also claimed the land, that he got Avood off it, and that it was the custom of the country to get Avood anywhere; that about eighteen or tAventy years ago the heirs of Zeno divided the lands of their father’s estate, excepting this land; that they Avere about to divide this also, but Theodore Collins’ Avife told them she had a deed from then’ father and, Avhile they denied that she ■ had said deed, they did not divide; this land, but Avaitad for her to find the deed.

Nothing seems to have been done, in regard to this land, by either party, so far as the evidence states, since that time, until about five years before the trial of the case (January 29, 1903), AAiien the defendant built a Avire fence around the land.

Plaintiff also introduced in evidence a number of tax receipts, running back as far as 1855, but not for every year since that time. Most of them give the value of the, real estate but not the amount of taxes paid; a few give the amount of taxes paid and not the value of the real estate1. The only one of Avhich indicates anything about the amount of land paid on are receipts for 1851 — 20 acres; 1855 — 24 acres, and 1861 — 24 acres. None of them indicate AAdiere the land is.

The defendant l-eqnested in writing that the court give the following charge, which request was refused, to-wit.: “The court charges the jury that they cannot, under the evidence in this case, find for the plaintiff as to any land which was not included within the rail fence which surrounded the. house of Theodore Collins or within the fence surrounding the garden or field of the plaintiff, Pauline Chastang.”

All titles in the United States emanate originally from the Government of the United States, and when a party has a patent from the Government, or a direct chain of conveyances from the Government to the present holder, he has what is called a complete title.

Passing over other ways by which he may lose this title, his title or his right to assert it may be lost by adverse possession or prescription ’ in favor of some other-party. But when the law places such high dignity upon a regular documentary title, and requires strict formalities to evidence it, it necessarily follows that it requires .clear and definite proof of those things which rest in parol, to overcome: it.

Hence, the essential elements of adverse possession are, 1st: The possession must be hostile and under claim of right; 2d, It must be actual; 3d, It must be open and notorious; 4th, It must be exclusive, and 5th, It must be continuous. If any of these constituents be wanting the possession will not effect a bar to the legal title. — 1 Am. & Eng. Ency. Law, (2d Ed.) 795; Murray v. Hoyle, 97 Ala. 588, 593; Ross v. Goodwin, 88 Ala. 390; Eureka, Co. et al. v. Norment et al., 104 Ala. 625; Goodson v. Brothers, Admr., 111 Ala. 589; Normen t v. Eureka, Co., 98 Ala. 181.

It seems so evident that it has not been deemed necessary to state it in any case that the party claiming to hold adversety must show by some evidence that he is holding the particular piece of land to which he claims title, and to show that, there must be some evidence showing the exact boundaries of the land claimed by him.

If a man claims title under a deed purporting to convey five acres in the N. E. and six acres in the S. E. quarter of a certain section, tlie court will say that is too indefinite, because no one can tell ivliere tbe boundaries of -said subdivisions are.

Bo tlie courts liave always field tliat if a man claims adversely under a paper color of title, fie will be considered to bold, in accordance witli tlie boundaries fixed by tlie paper, but if fie lias no paper title tfien fie can hold only tliat wfiiefi fie lias reduced to actual possession, and it would seem tliat when tlie courts are allowing tlie (dear muniments of title to be overcome by parol proof of adverse possession, tliey sliould at least require tlie proof to be as clear and definite as to what particular tract of land is claimed to be field, as would be required by conveying it by deed.

Tfien if Avitnesses testify that each of them suav a man cutting timber somewhere on a twenty acre tract of land, Avitliout designating where each one sa.Av him, nor Iioav often fie cut on tliat particular* place, nor fiow much land' fie cut over at tliat point, Iioav could it be said from that testimony that fie was indicating that fie claimed the entire twenty acre tract of land. Even if one saAv him cutting in tlie N. E. corner, one in the S. E. corner, one in each other corner and one in the middle, that would simply be one act in cutting at each place, and no evidence of continuous exercise of the right of either place.

It is true that there may be' such a continuous and persistent cutting of timber or avooc! from a tract of land, as to be evidence of a claim of ownership, and an advertisement to the Avorld tliat the party is occupying the entire tract, and if fie is. doing it/ in such a way, and under such circumstances as to sIioav to the world that fie is claiming it as his right it Avill ripen into title by adverse possession or prescription. But Ave hold that, without paper title or some other evidence to define the boundaries of the land claimed, such acts of cutting timber as are detailed by tlie Avitnesses in this case are not sufficient to bar tlie legal title field by the defendant. The only Avitness AvliO' attempts to fix any boundaries, (Andre) while fie states that the land fie is talking about is the entire twenty (or twenty-four) acre tract, yet Avfien fie describes the boundaries as pointed out in the conversation between Collins and Zeno, it Avas simply a boundary line at one point, and that point would seem to be at or about the three or four acre tract, which is not included in what we are saying, for he> states that Zeno required Collins to move his fence “so that each man would have his own fence about his own land,” and that afterwards there was a lane between them. The undisputed evidence is that the three or four acre tract was all that was fenced and that there was a lane or alley between it and Zeno’s land.

Evidence of the cutting of timber is admitted as a circumstance, to be taken into consideration, with other evidence in determining the fact and the extent of adverse possession. So, also, the payment of taxes is admissible as a circumstance, but the tax receipts in this case do not aid in pointing out the land claimed.

We hold then that in this case, in addition to the foregoing considerations, there being a,si much evidence showing such acts of ownership, on the part of the defendant’s father, who held the legal title, as there was on the part of plaintiff’s ancestor, that the entire evidence in this case was wanting; 1st, in pointing out definitely the land which was claimed to have: been adversely held; 2nd, in showing any claim of right; 3rd, in showing such continuous and notorious acts of ownership as the law demands. Childress v. Calloway, 76 Ala. 128; Burks v. Mitchell, 78 Ala, 61, 64; Goodson v. Brothers, 1 Admr. 111 Ala. 589; Bynum v. Hewlett, 137 Ala. 333.

When from the whole evidence there is an entire absence of any fact which is essential to' recovery it is the duty of the court to give the general charge in favor of the defendant, on request in writing. Hence, the charge requested by the defendant should have been given.

The assignments of error numbered from 2 to- 23 inclusive charge that the court erred in permitting the introduction of the tax receipts as evidence.

The general principle of law with regard to receipts is that, while they are, as against the maker, evidence of the payment as stated, yet, as to strangers to the transaction, “a receipt is incompetent evidence of such fact.— 23 Am. & Eng. Ency. Law, (2nd Ed.) p. 981.

But an exception lias been made in cases where “the person to whom the payment is made is pointed out by law, and such person is.required, by law to give a receipt.” — 23 Am. & Eng. Ency. Law, (2nd Ed.) p. 981. And this principle has been held to apply to tax receipts. Farris v. Boxell, 34 Minn. 262, 264; Johnstone v. Scott, 11 Mich. 232, 244.

According to our own decisions the payment of taxes is not evidence of possession, but, in connection with evidence of actual possession, is admissible to show claim of ownership and tin1 extent of the possession. — Jay v. Stein , 49 Ala. 514, 521.

In this case the proof was made by the testimony of a witness, as to the payment of taxes. — Baucum & Jenkins v. George, 65 Ala. 269, (end of opinion); Green v. Jordan, 83 Ala. 221, 224.

In the case of Trufant et al v. White & Co. 99 Ala. 526, 529, 534, the proof of the payment of taxes was made hv producing the tax boolcs. It will be observed that, in none of these cases, was any point made as to- how the tax receipt was to be proved, or whether it was self-proving.

It is stated in 27 Am. & Eng. Ency. Law, (2nd Ed.) 753, that “like receipts from other public officers, tax receipts prove themselves,” but an examination of the authorities referred to does not seem to bear out this remark.

Tn the case of McReynolds v. Longenberger, 57 Pa. 13, the party was claiming under the tax deed, and after introducing the record evidence of assessment, a sale of the lauds, offered to prove the contents of tax receipts over thirty year’s old, which had been burned, and the court admitted the testimony on the ground that they were ancient documents, were unblemished, had been found in the proper custody, etc, see p. 31, 32.

In Richards v. Hatfield, 40 Neb. 879, the statute re-qHiring the fact of payment, to be entered in a book and a receipt given, and went on to provide: that when the receipt should be lost, or destroyed, the entry in the book might be read, and the only question before: the court was, whether, in the absence of any entry on the book, any other evidence of the payment of taxes might be introduced.

The case of Adams v. Osgood, 55 Neb. 767, under the same statute, holds that when the fact of the levy or assessment is disputed in the pleading, the tax receipt is not sufficient to establish the fact of levy or assessment. In the case of Ellen v. Ellen, 16 S. C. 132, it is not stated how the tax receipts were proved.

Tliei law is unquestionable in regard to receipts generally that they shall he proved, like all other papers introduced in evidence, and, unless- there is some statutory provision making the receipt of the tax collector self-proving, we hold that, if it is an ancient document, it may be. received under the usual requirements in such cases, and, if it is not, it must he proved just as any other receipt would. -

Our statutes have provided for making certain books and official papers self-proving but this is not one of them.

The 23rd assignment of error, is to the sustaining of the objection to the question by defendant to Piere Chas-tang, “How often did you get firewood there?” The witness and others had testified to the continued use of these lands by his father, and him,self, by the same acts which had been testified to as- to Collins, and as tending to rebut the idea that similar acts on the part of Collins indicated an adverse holding of the land, it was material to prove that the owner of the legal title was doing the same acts on the same land, and the extent of his acts. The court erred .in excluding this testimony.

There was no error in the refusal of the court to permit Adele Ohastang to testify that she heard her father say that he had paid taxes on the land, and that it was hearsay.

The charge referred to in the 25th assignment of error, was erroneous. This charge was calculated to- confuse the. minds of the jury, by stating a hypothetical case, not in accordance with the facts as testified to, and as shown in the latter part of the charge itself. It then as.sumes that Pauline Chastang had such a possession as would be in law adverse possession. It. ignores the necessity of exclusiveness in the possession, in connection with the proof that the heirs o;f Zeno Chastang who' held the legal title¡, had already acquired possession of this land, under the IT. S. patent, and were continuing to manifest their possession, by acts equally notorious as those of plaintiff. But this charge is not lilcely to be given again on another trial of tlid case, so that it is unnecessary to point out further defects.

The charge1 referred to in the 26th assignment of error is liable to tin1 construction that if Zeno Chastang admitted that Theodore Collins was claiming the land in dispute, then he could not manifest his own continued claim under his legal title by acts of possession, which would be clearly wrong. Or even if “admitted his claim/’ could mean that Zeno verbally admitted that Collins claim to the land was valid, that could not- preclude him from claiming rights tinder his? own legal title, while it might be a circumstance to explain his subsequent acts.

Referring to the 27th and 28th assignments of error, the principles heretofore referred to in our remarks upon the request for the general charge by the defendant, show that these charges should have been given. The evidence is incontestible that Zeno Chastang held the legal title from the Government, and entered under the title, built a house in which he and his family continued to reside. This gave him the constructive possession of the entire tract, and no subsequent constructive possession, even under color of title, could overlap his possession. Nothing short of an actual, open, notorious and exclusive possession by another could interrupt the constructive possession which was attached to the legal title. — 1 Am. & Eng. Encv. Law, (2nd Ed.) 869, 870, 871 and notes; Sedgwick & Wait on Trial of Title to Land, (2nd Ed.) § 753; Burks v. Mitchell, 78 Ala. 61.

The charge referred to in the 29th assignment of error, asserts a correct principle of law.

While it is true under our decisions that a temporary interruption by a mere trespasser, if speedily redressed, will not interrupt the continuity of the possession, as to him, yet this principle does not apply to the holder of the legal title; entering under a claim of right; and if he make such entry and hold such possession, even jointly with the other party it-is nevertheless an interruption of the continuous adverse possession of the other party. Doe ex dem. Farmers’ Heirs v. Eslava, 11 Ala. 1029, 1043, 1044; Ladd v. Dubroca, 61 Ala. 25; Sedgwick & Wait on Trial of Title to Land, §§ 741, 745; 1 Am. & Eng. Eney. Law, (2nd Ed.) 836 and note; L. & N. R. R. Co. v. Philyaw, 88 Ala. 246.

For the errors indicated the judgment of the court is reversed and the cause remanded.

McClellan, O. J., Tyson, and Andbrson, J. J. concurring.  