
    Hamby, et al. v. Folsam, et al.
    
    
      Ejectment.
    
    (Decided Nov. 22nd, 1906.
    42 So. Rep. 548.)
    
      Tenancy m Common; Adverse Possession; Ov,ster; Evidence. — The giving of tbe affirmative charge for the plaintiff, and the exclusion of evidence, offered by the defendant on the question of ouster, was error, as the evidence was sufficient-to submit to the jury the question, of whether or not one of the tenants in common had ousted the others and so obtained title by adverse possession.
    Appeal from Tallapoosa Circuit Court.
    Heard before Hon. S. L. Brewer.
    Action of ejectment by Folsam, et al., against John Hamby, et al., the facts of which sufficiently appear in the opinion of the court. From a judgment for plaintiff defendant appeals.
    Lackey & Bridges, and Thomas L. Bulger, for appellant.
    — The fact of the execution or the existence of a written document may be shown without producing or accounting for its absence. — Hancock v. Kelly, 81 Ala. 368; Green v. Jordan, 83 Ala. 220. The loss of a. writing must he proved by the person in whose possession it was, if living, and if dead, search should be shown to have been made among his papers by his personal representative. —Ala. Gonstr. Go. v. Meador,'33 So. Rep. 216. Where defendant claims title by adverse possession a conveyance of the land by the defendant to a third party is admissible to- show assertion of claim of title —Anniston Gity Land Go. v. Edmundson, 12.7 Ala. 445. Assessment and payment , of taxes on the land, under a claim of adverse possession, is competent to show the character and extent of possession. — Trufant v. White, 99 Ala. 527; Green v. Jordan, supra. The tax assessment books are admissible to prove the assessment of lands for taxes to a party claiming the land. — Anniston Gity Land Go. v. Edmundson, 141 Ala. 366. Title acquired by adverse possession can only be divested by proper conveyance or by adverse holdings for the statutory period.- — Pittman v. Pittman, 124 Ala. 20-6; Tennessee Go. v. Linn, 123 Ala. 12; Echols v. Hubbard, 90 Ala. 309; Hoffman v. White, 90 Ala. 354.
    James' W. Strother, for appellee.
    — Declarations made by a party in recognition of title in plaintiffs are competent, as are admissions of a party in disparagement of his own title. — Wisdom v. Reeves, 110 Ala. 418; Beasley v. Glarke, 102 Ala. 254; Hart v. Kendall, 82 Ala. 144. Admissions against interest are always competent.- — ■ Humes v. 03Brien, 74 Ala. 64. Declarations expanatory of possession are competent evidence against the party making them. — Mobile Savings Bank v. McDonald, 89 Ala. 448; Steed v. Knowles, 97 Ala. 580; Payne v. Grato-ford, 102 Ala. 398; 104 Ala. 199. A disclaiming defendant is estopped from asserting title. — Greeley v. Thomas, 86 Pa. St. 35. (Counsel discusses motion to establish bill of exceptions.)
   TYSON, C. J.

— The land in controversy originally belonged to Benjamin Folsam, who died in possession of it in the year 1872, leaving as his heirs at law four sons and four daughters, only two of which were living at the date of the trial. One of the sons died without children. This action, which was commenced in May, 1904, is for the recovery of an undivided two-sevenths interest in the land by the grandchildren of Benjamin, sons- and daughters of two of his .deceased children. The testimony on behalf of the plaintiffs tended to show that upon the death of Benjamin bis son James took possession of the land and continued to hold the exclusive possession of it, without payment of rents and profits to any one, until his death in June, 1894. It is true this testimony also tends to show that at some time during this period of his holding, the exact dates not being shown,: he made- declarations recognizing the title of brothers and sisters as co-tenants with him. The defendant offered to show that James Folsom, from 1875 to 1894 assessed the lands for taxation in. his own name-and paid the taxes for those years; that just prior to his death in 3894 he made a deed to them to his wife; that the wife, who remained in possession after his death, executed a mortgage to Gil-lam ;that Gillam sold the lands under the mortgage to Stone & Johnson; and that they contracted to sell them to the defendant — all of which was excluded. The affirmative charge was given at the written request of the plaintiff.

It cannot be affirmed as matter of law, as was done by the trial court, on the tendencies of the testimony above noted, that the possession of James Folsam was not adverse to that of his brothers and sisters. It other words, it was a question for the jury to determine whether there had been an actual ouster by James of his co-tenants, and, therefore, wdiether he had acquired the title to the whole land by adverse possession. As said by Mr. Freeman, in his work on Co-tenancy and Partition (section 232) : “The cases which present the greatest difficulty in determining whether one co-tenant has been ousted by another are- those in which the original entry was apparently or confessedly that of a co-tenant, or was at least not made in any such a manner as pointed to a denial of the rights of his- companions in interest. In such case, as there is nothing to give notice that the entry was hostile, in order to show that a subsequent possession became adverse, a state of facts must be proved from Avhich an actual ouster is directly established or from which such ouster may be inferred. The question of ouster is always a question of fact, to be determined by the jury. It would be difficult to find any instance in which this question was involved in sufficient doubt to give rise to controversy at law, and in which the facts constituting the alleged, disseisin were of so decisive a character that the court can say, as a matter of law, that they did amount to an ouster.” It is undoubtedly the law that, if a person be a part owner, the presumption is that he enters as such'part owner, intending, while enforcing his own rights, to respect those of his co'-tenants, and until by some act of an unequivocal character he indicates that his possession is no longer the possession of his co-tenant, as well as of himself, he cannot claim to have acquired any rights against them based upon their disseisin. This unequivocal act, however, may be shown by acts and circumstances, and its existence need not he established by direct evidence. “When an issue arises in regard to an alleged ouster, certain acts and circumstances may be put in evidence, which, though they do not establish a direct keeping or turning out, nor an express denial of title, yet tend to create ‘a natural presumption of an ouster,’ and to force upon the minds of the jury the conviction that an actual ouster must have taken place. ® The facts which will sufficiently prove such ouster and adverse possession will vary according to the different circumstances of parties, and no definite and positive rule can be laid down by which all cases can be governed. It may, however, be safely said that a sale and uninterrupted possession and permanency of the profits by one tenant in common, with the knowledge of the other, continued for a long series, of years, without any possession or claim of right, and without any perception of profits or demand for them by the co-tenant, if unexplained or uncontrolled by any evidence tending to show a reason for such neglect or omission to assert a right, will furnish evidence from which a jury may and ought to infer an actual ouster and adverse possession.” —Freeman on Co-tenancy, § 242. See, also, Johnson v. Toulmin, 18 Ala. 50, 52 Am. Dec. 212; Bozeman v. Bozeman, 82 Ala. 389, 2 South. 732; Jackson v. Elliott, 100 Ala. 669, 13 South. 690, and cases there cited.

The principle last above quoted is peculiarly applicable to this case. Whether the inference of ouster and ad verse possession by James Folsam, which the jury are authorized to draw from his acts of dominion over the land for 20 years or longer, is overcome by the declarations shown to have been made with respect to the character of his holding, if believed by the jnry, was one for their determination. In short, the inference, if drawn, would be in conflict with the testimony that he made the declarations; and the resolving of that conflict was not for the court but for the jury. It follows, therefore, that the giving of the affirmative charge for plaintiffs was error; and, clearly, the testimony offered by defendant should have been admitted.

Beversed and remanded.

Haralson, Simpson, and Denson, JJ., concur.  