
    RUSSELL vs. ERWIN’S ADM’R.
    [REAL ACTION IN NATURE OF EJECTMENT.]
    I; What title will authorize recovery. — In a real actkpi-ki the nature of an • ejectment, (Code §§ 2209-19,) a recovery may be had on proof of prior ■ possession by plaintiff, under color of title,-unites he is barred by the.etatute of limitations, or unless .the. defendant-shows a better title. A, possession under color of title, within the meaning of this principle, is necessarily held with claim of right; and the defendant would show a better title, by proving an outstanding valid title in a third : person, or a prior possession by himself under color of title, which he - had not abandoned, and which he was not. estopped from asserting.against the plaintiff.
    
      Abstract charge. — An abstract charge, which asserts a correct legal"; proposition, is not a, reversible error, .unless the appellate court is . reasonably convinced that it must have misled the jury.
    3. Estoppel against tenant from denying landlord's title. — A tenant is < estopped from denying his landlord’s title, without first surrendering; the possession under the tenancy; and the estoppel equally applies te>his wife, living with him, and occupying simply as his wife under the tenancy, and to any third person -who holds under him or his wife.
    4. IVluot creates relation of landlord and tenant; estoppel en pais. — If land is given, by parol, to an infant, and his mother enters into-the possession,, under an agreement with.the grantor to hold it fortheinianty,, the technical .-relation .ofi.laudlord. and tenant js.not..thereby created , between tlie infant and his mother; yet the mother is estopped from denying the infant’s title, on the same principle which applies be^ 'tween landlord and tenant.
    5. Attornment to strange)'; "adverse possession. — An attornment hy a tenant to a stranger, who claims to own the land, although it may be ineffectual to create the relation of landlord and tenant between them, because of an estoppel against the tenant in favor of the landlord najjder whom he entered, nevertheless destroys the adverse character of-his possession as against such claimant.
    6. Amendment of complaint. — The complaint may he amended, (Code, { 2254,) alter the evidence is closed, hy correcting- a misdescription erf the .land sued for.
    Appeal from tbe Circuit 'Court of Mobile.
    Tried before tbe -Hon. C. W. Rapier.
    This action was brought by F. G-. Kimball, as the administrator de bonis non, mm testamento annexo, of Isaac H. Erwin, deceased, against James W. Russell, Ellen Thompson, and Theodore Petit, to recover the possession of several city lots in Mobile, with damages for their detention. The defendant Russell was admitted by the court to defend as landlord, and pleaded the general issue, with a suggestion of adverse possession for more than three years, and the erection of valuable improvements. After the evidence was closed, the court allowed the plaintiff, against the objection of the defendant, to amend his complaint, by correcting a mistake in the description of the premises sued for; to which ruling the defendant reserved an exception.
    The plaintiff claimed the premises under a deed of partition, executed by Jacob Baptiste and others, dated the 28th December, 1838, by which the lots, with others, were conveyed to his testator, Isaac H-. Erwin, deceased; and ■he adduced evidence tending to prove that Erwin, by his tenants, had possession under the deed. The defendant Russell was the son of his co-defendant, Mrs. Ellen Thompson, by a former husband; and the plaintiff’s evidence tended to show that Mrs. Thompson and her husband, Edward J. Thompson, accepted* a lease of the premises, in 1849, from Mrs. Rebecca Erwin, -the widow and ad-ministratrix of said Isaac H. Erwin, deceased, and paid rent to her. The defendant read in evidence a deed for the premises from Wm. J. Morrison to himself, dated the 19th April, 1856 ; and adduced evidence showing that the title was in Morrison ahthe time said deed was executed. He also introduced one McBride as--a witness, who testified, to a parol gift of the land by said Morrison -to him in 1838 or 1839, (lie being.,.'then an infant;) that Morrison, at the time of. said gift', put Mrs. Russell, defendant’s mother, in ■ possession of the land, and “toldher-to'-ho'ld it for her son”; that Mrs. Russell agreed to do,so, and-continued in possession until some time during the year 1856, renting out a portion of the premises, erecting fences, &c. Numerous exceptions -were reserved by the defendant to ■ the rulings of. the court on questions of evidence, but .the decision-of this court -renders-it unnecessary to notice them.
    “The court charged the jury, among other things, that although the plaintiff had not connected his title with-the "(Tinted States, still, if they believed from the-evidence-fhat Erwin, and his legal representatives in his right, had been in possession of the land in controversy, prior to bringing this suit, under a deed, claiming title, and- that it was so held by them for a number of years, or for any considerable time, then plaintiff could' sustain the action without showing that his title, was connected ..with'' the United States: that prior possession, under color of title,would authorize the plaintiff to recover, unless the defendant has shown a better- title, or unless the plaintiff is barred by the-, statute-of limitations.; .$hat if Thompson held possession of the land- imeontroversy under the lease to him introduced in evidence, and if Mrs. -Thompson was his wife, and-' lived with him whilst he so held possession, then, if, whilst the possession was so-held by Thompson and his wife, the-defendant Ru-ssell went into possession under either of-them, fie would be-estopped, until he should surrender the ■ possession, from setting up a title to' the land, as against the landlord of Thompson, or the person standing in the ■ place of such landlord;, that although -they might believe^ from the evidence, that the land in controversy was given-.', by Morrison to the defendant- in 1837 or 1838, before Erwin acquired the title or possession, and that Morrison put" Ellen Russell in the possession-'-'of said land, claiming at the time to be the owner of it, and under an agreement with her to.hold it for her son, and that she did take possession -, pursuant to said agreement* -and that the defendant was at that time a minor, — this did not constitute-- the relation of -! landlord and tenan-t between -the son and the mother, so as to make the son -the landlord, and,the mother his tenant; ,- and that if she afterwards held possession under Erwin, or under Erwin’s executor or administrator, such possession * would'be the possession of-Erwin,-or of his executor or administrator, as against both the mother and her son.”
    The defendant excepted to-.“each and every part of this : charge,” and then requested the court to instruct the jury, “ 1st, that if they believed, from the evidence, that Morri- ■ son put Ellen Russell (afterwards Thompson) in possession . of the land, to- hold for the defendant, her son, who was then an infant, -and that she agreed to do so, and took possession under said request, then, by--.this contract, she be- ■ came the tenant of her son ; and that if she, while so holding, afterwards attorned to Erwin, or-Erwin’s administrator, or any one else, this, of itself, did not destroy or affect the defendant’s possession.” " The court refused to give this charge, and the defendant excepted to its refusal.
    The several, rulings of the court to which exceptions were reserved, are now assigned as error. -..
    
      W. Boyles, with R. H. Smith,- for appellant.
    Jno. T. Taylor, and Jno. Hall, contra.
    
   A. J. WALKER, C. J.

The first proposition of the ■ charge given by the court, of which the-, appellant com-: plains, is, that prior, possession, under color of title, would authorize the plaintiff to recover, unless the defend- • ant had shown a better title, or unless the plaintiff was > bárred-by the. statute.of limitations. It is unnecessary to.-t go at all into the general subject of possession as a ground of recovery in ejectment. It is sufficient in this case, that the authorities are such as to leave no room for doubt that the proposition stated by the court is correct; and we need ■not decide any thing as to the necessity of color of title to constitute prior possession a ground -of recovery in this case. — Smith v. Lorillard, 10 Johns. 347; McCall v. Pryor, 17 Ala. 533; Cox v. Davis, ib. 744; Badger v. Lyon, 7 Ala. 564; Heydenfeldt v. Mitchell, 6 Ala. 7; Smoot & Nicholson v. Lecatt, 1 St. 590.

The appellant objects to the proposition of the charge, that it allowed a recovery by the plaintiff upon a possession not held under claim of title ; and that it precluded a defense upon the ground of an outstanding valid title in a third person, or of an older'possession than the plaintiffs. It is a sufficient answer to these objections, that the charge is not in fact obnoxious to them. It is fiot liable to the former objection, because it requires that plaintiff’s jaossession should have -been under color of title; and there could not be possession under-color of title, unless the possession was held with claim df right. A possession under color of title is with a claim of right by virtue of the colorable title. — Angelí on Lim. §§ 404, 405. The latter objection to the charge is obviated by its subordination of the plaintiff’s right-of'recovery to the showing df a better title by the defendant. If the defendant had proved an outstanding valid title in a third person, or prior possession under ■claim of right in himself, which he had not abandoned ■without the animus revertendi, and which was unaffected by an estoppel, he would have shown a better title than the plaintiff’s, and, under the charge, would have been entitled to the verdict. The charge would, as the appellant contends, have allowed- a recovery by the plaintiff upon prior-possession, notwithstanding the defendant’s subsequent possession was under color of title ; but in this there is no fault. The plaintiff’s older possession, at least where, as in the case put by the charge, it was under color of title, unust be preferred to a junior possession under color of title.

Another portion of the affirmative -charge which is now pointed out as objectionable, is as follows': “ If Thompson held possession of the land in controversy under the lease to him introduced in evidence, and if Mrs. Thompson was his wife, and lived with him 'whilst he so held possession, then, if whilst the possession'was so held by Thompson and his wife, the defendant (Russell) went into possession under either of rhem, he Would be estopped, until he should surrender the possession, from setting up a title as against the landlord of Thompson, or the person standing in the place of such landlord.”

The first objection made to this portion of the charge is, that it is abstract. The bill of exceptions professes to set •out all the evidence, except as to the value of rents and improvements. Upon looking carefully through the evidence, we can find no testimony tending to show that the defendant, Russell, ever held the land under either Thompson or his wife. It is, therefore, impossible to avoid the conclusion, that the charge is abstract. It is, however, a doctrine established in this court, that the abstractness of a charge, asserting a correct proposition‘of law, is not a reversible error, unless we are reasonably convinced that it must have misled the jury. — Partridge v. Forsythe, 29 Ala. 200; Stein v. Ashby, 30 Ala. 363; Taylor v. Morrison, 26 Ala. 728 ; Johnson v. Boyles, ib. 576 ; Salmons v. Roundtree, 24 ib. 458; Towns v. Riddle, 2 Ala. 694; Hughes v. Parker, 1 Porter, 139.

It is possibly true, that a husband might, in some ’conceivable case, be affected by an estoppel in favor of his landlord, which would not operate against his wife living with him ; but this could never be the case, if the wife was in possession simply as a wife, living with her husband, who was the tenant. We understand the expression of the charge, “if whilst the possession was so held by Thompson and Iris wife,” when construed in reference to the preceding part of the sentence, to mean, “ if whilst the possession was held by Thompson as a tenant, and his wife as a wife living with her husband.” Thus understood, it is clear that the proposition of the charge is correct. The tenant, and his wife living with him, and possessing unden the tenancy, and any person holding under either of them/ would be estopped fronx.denying the landlord’s title, without a .surrender of the possession under the tenancy.— Pope v. Harkins, 16 Ala. 321 ; Shelton v. Eslava, 6 Ala. 230; Cook v. Cook, 28 Ala. 660 ; Doe v. Reynolds, 27 Ala. 364; Smith v Mundy, 18 Ala. 182; 1 Smith’s Leading Cases, 657.

We are not. reasonably convinced that the. jury .were mis-» led by the charge, and we will not., reverse because it is abstract., The counsel for. the appellant argue as if the charge asserted that, upon its hypothesis, the defendant would be -estopped from asserting., his title in this case. The charge, makes .no such assertion. It says simply, that there would be.an.estoppel as to the landlord, or one stand-, ing in the place of .such landlord.

The next, objection is to that part of the charge, which declares, that if a.tkird person made a parol gift of the land to the defendant,..then an infant, and his mother, entered upon the land under an agreement with such third-person to hold it for her son, the relation of landlord and tenant between the mother and son would not be created-The technical relation of landlord.- and tenant would nofe result from such an agreement.- — Taylor’s Landlord and Tenant, 9, § 14; Smith’s Landlord and Tenant, 4. It was/ therefore, not a reversible error, for the. court to say that such a, relation did not grow.out* of the facts stated. The court, however, went on to instruct the jury, that if the, mother afterwards.Jb.eldpossession under..Erwin, -it would be the possession of Erwin, both as to the mother and as to the defendant. Notwithstanding, the technical relation of land.-: lord-and tenant would-.not grow., out of the entry of the mother under the agreement to. hold for her son, she would-be estopped frpm denying, .the son’s title. The mother* thus entering under the' title of the son, and under am. agreement to hold for the son, could not in violation of, i «rood faith» to the prejudice. of her son,, set up an. antago^ ■ aistic title; and she would be estopped, upon the same principle on which the tenant is ¡estopped. — 2.Smith’s Leading-Cases, top page, 611, marg. 458. The court erred, therefore, in charging that the possession of the mother, entering, in such a manner, would be the possession of Erwin, because she held under Erwin. Certainly the possession of the mother could not be Erwin’s possession as 'against the defendant. We think the court ought to have given the first charge asked"by'"the counsel.

If Thompson-and-his wife attorned to Erwin, orto his representatives, the possession would not be adverse to them. Such an acknowledgment of the title, although it may liave been ineffectual, in consequence of an estoppel In favor of the defendant, to create the relation of landlord and tenant, would take from tile possession its adverse character. A possession can not be the basis’of a bar under the statute of limitations, unless it is in fact adverse.

The court' committed' no error in allowing the amendment's which were made. — Code, § 2254.

The questions of evidence presented in the bill of exceptions may not again arise in the same form, and we will not swell’this opinion by noticing them ; nor do we think ft is necessary té notice 'the refusals to charge, further than', we have already dime.

Reversed. and 'remanded!-'  