
    Bell et al. v. Denson.
    
      Statutory Real Action in Nature of Ejectment.
    
    1. Secondary evidence of mortgage; when admissible. —The execution of a mortgage on land cannot be proved, as a fact tending to show ownership or possession, without either producing it, or accounting for its absence.
    
      % Adva-se possession; what constitutes. — Possession, without written color of title, is adverse only to the extent of the actual occupancy, and must be by acts suitable to the character of the land; but, being such, it matters not what its purpose is, — whether it be for residence, cultivation, or digging for ores; and a charge which restricts it to land used for two of these purposes only, while the evidence also show's the third, is erroneous.
    3. Same. — Continuity is an essential element of an adverse possession; but the mere intrusion of a trespasser, not brought to the knowledge of the party in possession, nor continuing long enough to raise a presumption that it was known to him, is not an interruption of his possession, and does not change its character.
    4. Charge misleading jury. — A charge given, which asserts a correct legal proposition, but has a tendency to mislead the jury, is not a reversible error: an explanatory charge should have been requested.
    Appeal from the Circuit Court of Cleburne.
    Tried before the Hon. Wk. L. Whitlock.
    This action was brought by James H. Bell, William Dothard, and Benjamin J. Sitton, against Levi P. Denson and J ames Denson, to recover a certain tract of land in said county, which was described as “ the west half of section six (6), township seventeen (17), range eleven (11),” together with damages for its detention. The record does not show at what time it was commenced. The defendants pleaded, “in short by consent, the general issue, and the statutes of limitation of ten and twenty years; ” and issue was joined on each of these pleas.
    “On the trial,” as the bill of exceptions states, “the plaintiffs introduced the following evidence of title: 1st, a patent for the land from the United States, to Trammell, Goodwin, and Yann, dated October 19, 1840, it being a part of the Creek Indian lands; 2d, a deed from William Yann to George W. Trammell, for an undivided third interest in said lands, dated April 23,1842; 3d, a deed from F. A. Trammell, as the administrator of George W. Trammell, deceased, to William Dothard (one of the plaintiffs), dated August 17,1870, for all interest of said deceased in said land, in connection with a transcript from the Probate Court of Chambers county, showing an application by said administrator to sell said lands, an order of sale, and confirmation thereof, and order to convey, and purchase by said Dothard, — all regular. The plaintiffs next introduced David Creamer as a witness, and proposed to prove by him that James Bell, sr., executed a mortgage on an undivided interest in said land, before the ■war, to the brother of said witness; this being offered by plaintiffs as tending to show possession by said Bell, with a .view to introduce deeds from said James Bell to plaintiffs (Bell and Sitton) to certain undivided interests in said land, hereinafter set out. The court refused to allow plaintiffs to make said proof, and plaintiffs excepted.”
    
      “ The plaintiffs proved, by said Creamer, that he saw said James Bell on said land in 1866, with Dr. Beasley and some hands, digging in a rock vein of gold; the south half of said land being a part of the old Arbacoochee gold mines. The plaintiffs introduced a deed from said J ames Bell to said James H. Bell (plaintiff), dated in June, 1867, for one-fourth part of three-eighths interest in said land ; also, a deed from said James Bell to said B. J. Sitton (plaintiff), dated’the 27th May, 1869, for an undivided one-eighth interest in said lands ; ” and two other subsequent deeds between the same parties, for small fractional interests. “ The plaintiffs introduced William Beggs as a witness, who gave evidence tending to show that Levi P. Denson, one of the defendants, paid gold rent on said land, from the spring of 1848, to the fall of 1849, to said witness, for T. & W. Dothard; that T. Dothard told defendant he had now got the land, and that he must pay rent to him, said Dothard; and that said T. Dothard, in the same year, gave permission to Denson, the elder, to build the house on said land where he now lives. William Hederick proved, that in 1849 he cultivated the Tharpe field in oats, and paid rent to T. & W. Dothard; that said field is now inclosed in the field said Levi P. Denson has around his house on the land sued for; that he took a lease, in 1867, on a part of said land, from Dotbard (plaintiff), and cleared five or six acres, and cultivated tbe land two years, and tbat defendants made no objection. "William Price, a witness for tbe plaintiff, testified, tbat one Eelton Pruitt went into possession of a part of said land in 1861, by permission of plaintiffs, and built a bouse thereon, and cleared a field, and lived there until be died, some three or four years ago ; and tbat said Dotbard (plaintiff) took possession of said bouse and land after tbe death of said Pruitt, and bad paid tbe taxes on tbe said land for a number of years last past. By John Weathers, an old miner, tbat be worked on said land in 1848-9, and paid ient to said Beggs, for T. & W. Dotbard. By W. H. Green,-that said defendant told him, in 1867, be owned no land, but lived on a disputed claim. By Lewis Coffey, who was tax assessor for said county in 1874, tbat be applied to said Levi P. Denson to give in bis property; who said tbat be owned no land, and gave in none.
    “James H. Bell (plaintiff) testified, that said Denson told him, in 1863, tbat be was doing better than any body, as be bad no rent nor taxes to pay, and tbe land be was living on. would come into market soon, and be would buy it. Tbe proof tended to show, tbat said Denson went on said land in tbe fall of 1852, and built a bouse near tbe east line, and near tbe centre (north and south), and inclosed a field of some ten or twelve acres about bis bouse, said bouse being on the north-east quarter of the south-west quarter of said land, and tbe field extending a short distance on tbe south end of tbe south-east quarter of tbe north-west quarter. Said Denson bad also cleared and inclosed a field of twenty-five or thirty acres, in tbe south-east corner of tbe south-west quarter. Said Dotbard (plaintiff) also bad a field of five or six acres, extending over on tbe said south-west quarter of south-west quarter, and adjoining Denson’s said field. Tbe Pruitt bouse and field were on tbe north-west quarter of tbe south-west quarter. Tbe proof tended to show, tbat said Denson, since 1852, bad been working on said land, south of bis house, for gold; and tbat tbe other parts of said land were uniD closed, not worked for gold, and in tbe woods. Sit-ton testified, tbat be went upon tbe land in 1867, with James Bell, with a view to see it, and to buy an interest in it from said Bell; tbat they went to tbe bouse of said L. P. Denson on tbe premises, when Bell told him tbat be was about to sell tbe land to said witness, and tbat Denson made no objection.
    “The defendant introduced evidence, tending to show tbat he, said Levi P. Denson, bought said la.nd, in 1844, from Currin Petit, and paid him. his interest in certain gold, which he had deposited with said Petit, and the amount of which he could not state exactly, but thought it might be $200; that he went in possession of said land in 1852, and built houses, and cleared land, as hereinbefore set out, and has lived on said land ever since, paying rent to no one; that the trade between him and said Petit was entirely verbal, and no writing of any kind was -executed. Several witnesses testified, on the part of the defendants, that said L. P. Den-son moved upon said land in the fall of 1852, and had lived there, continuously and uninterruptedly, from that time to the present; that the defendants had cleared and cultivated portions of said land, and dug for gold on other portions, and have all this time been exercising control of said land.
    “The plaintiffs requested the court to give the following charges, which were in writing : ‘1. If the jury believe, from the evidence, that the defendants’ possession was adverse, yet, if they claimed under a verbal claim only, that possession can extend only to that part actually inclosed by them for farming purposes, and the portion actually worked by them (or either of them) for gold; and they cannot set up such adverse claim to that portion of the land wdiich is not so occupied by them.’ ‘ 2. That, if the jury believe, from the evidence, thatDothard (plaintiff) went into the possession of any part of said land, within ten years from the time said Denson took possession, then that stopped the statute of limitations from running from that time, as to the whole of the land sued for.’ The court refused each of these charges, and the plaintiffs excepted to the refusal of each.
    “ The defendants requested the court to give the following charges to the jury, which were- in writing: ‘ 1. That a knowledge by one in possession, claiming title, that his title is defective, does not prevent such possession from being adverse.’ ‘2. That notice is necessary to constitute adverse possession by one who went into possession under another, but it may be inferred from facts and circumstances.’ ‘ 3. That it is wholly immaterial what Sitton paid for an interest in the land, if defendants have held the land adversely for more than ten years before the commencement of the suit.’ ‘4. That the payment or non-payment of taxes is no evidence of want of title.’ ‘5. That if said L. P. Denson bought the land in dispute from Petit, under a parol contract, and, at the time of the purchase, paid any of the purchase-money, and went into possession of the land, then said Denson has an^adverse possession of said lands, and is entitled to protect himself in this suit under an ad verse claim, upon actual or constructive notice of such claim.’ ‘6. That constructive notice, in law, is such a state of facts as will put a fair and just mind upon inquiry.’ ‘ 7. That if the defendant, upon such purchase, went into possession of said land, built houses and stables, and cleared and tended at least fifty acres of said land, in the customary crops of the country ; then the jury may look to all the facts, to determine whether plaintiffs had constructive notice of an adverse holding by said Denson.’ ‘8. That if the jury believe, from the evidence, that said L. P. Denson was in adverse possession of the land sued for, at the time the deeds of James Bell were made, then said deeds are void, and convey no title to said James H. Bell and Sitton.’ The court gave these charges, and the plaintiffs excepted separately to each one of them.”
    The rulings of the court on the evidence, the charges given, and the refusal of the several charges asked, are now assigned as error.
    James Aiken, for appellant.
    G. 0. Ellis, with Watts & Sons, contra.
    
   BBICKELL, 0. J.

The evidence proposed to be made by the witness Creamer, that Bell, before the war, had executed a mortgage on the premises, was properly rejected.' If the mortgage was material, it should have been produced, or its absence accounted for, before parol evidence of its existence could be received.

2. Actual, visible, uninterrupted possession, hostile to the true owner, tolls his entry, if continued for the period prescribed by the statute of limitations. When the possession is without written color of title, defining the quantity, or boundaries of the land claimed, it is adverse only to the extent of the actual occupancy. — 2 Smith’s Lead. Cases, 565 ; Golson v. Hook, 4 Strobh. 23 ; Jackson v. Shoonmaker, 2 Johns. 230; Jackson v. Warford, 7 Wend. 62 ; Farley v. Smith, 39 Ala. 38. This is not, however, the principle asserted in the first charge requested by the appellants. The error of the charge lies in limiting the adverse possession of the lands to such parts as were actually inclosed for farming purposes, and the part actually worked for gold. The inclosure is but one act indicating possession and claim of ownership. There are many other acts, equally indicative of possession and the claim of ownership. The erection of houses, followed by subsequent occupancy, would be, perhaps, to a jury, more evincive of possession and ownership, though they were never surrounded by inclosures, than inclosures of fields, sometimes cultivated and sometimes lying uncultivated. The possession must be by acts suitable to the character of the land; and being such, it matters not what is its purpose, whether for cultivation, digging for ores, or for residence. Limited as the charge is in terms, it would have justified the jury in supposing that the houses, in which the appellants resided, were not held adversely, though the lands inclosed for farming, and the lands which had been occupied in digging for gold were, and would thus have misled them. There was no error in its refusal.

3. Continuity is an essential element of the possession which bars the entry of the true owner, and ripens into a title in the adverse possessor. The unknown intrusions of mere trespassers will not interrupt the continuity, unless continued for such a length of time as to become assertions of adverse right. — Farmer v. Eslava, 11 Ala. 1028. The entry of -Dothard, if not on that part of the land of which Den-son had actual possession, was not an interruption of his possession, and worked no change in its character. It was not an invasion of Denson’s rights, as dependent on his possession, and gave him no cause of action, or opportunity of asserting his claim. The second charge requested was, therefore, properly refused. It was properly refused, also, because the entry of Dothard may have been but momentary, without Denson’s knowledge.

4. It may be that one or more of the charges given, on the request of the appellees, had a tendency to mislead the jury. That, however, is not a reversible error; the appellants should have requested explanatory instructions. — ;1 Brick. Dig. 344, § 129. It cannot be affirmed that either of these charges is erroneous in the statement of legal principles.

The judgment is affirmed.  