Acker v. Green

• Citation: 224 Ala. 134,138 So. 820
• Decision Date: 17 December 1931
• Docket Number: 4 Div. 578.
• Parties: ACKER v. GREEN ET AL.
• Court: Supreme Court of Alabama

138 So. 820

224 Ala. 134

ACKER v. GREEN ET AL.

4 Div. 578.

Supreme Court of Alabama

December 17, 1931

Rehearing Denied Jan. 21, 1932.

Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.

Bill for injunction by Birdie S. Acker against A. H. Green and C W. Green. From a decree denying relief, complainant appeals.

Affirmed.

A. G Seay, of Troy, for appellant.

Guy W Winn, of Clayton, for appellees.

THOMAS J.

The first appeal was on ruling on demurrer and discharge on motion of injunction. Acker v. Green, 216 Ala. 445, 113 So. 411.

The bill was amended by allegation that appellees had continued to cut and remove timber from said land, and prayed judgment for value of the timber or lumber manufactured therefrom. The answer denied all essential allegations; testimony was taken, and submission was for final decree; and judgment denied the relief prayed.

The question of injunctive relief was considered and maintained in Tidwell v. H. H. Hitt Lumber Co., 198 Ala. 236, 73 So. 486, L. R. A. 1917C, 232, and Acker v. Green, 216 Ala. 445, 447, 113 So. 411.

The appellant insists that title was acquired by adverse possession alleged to have begun to run in 1903, by return of the lands for taxes, the building of a tenant house thereon in 1908, and notice of adverse possession of date of March 5, 1904. In other words, it is insisted that subsequent possession of those claiming the lands was such as "its condition would admit" by J. T. Grubbs, who died in 1914. This land was sold by order of the court, at the instance of the administrator de bonis non, and purchased by the widow of J. T. Grubbs. This deed to Mrs. Grubbs is the first record title under which the appellant claims.

Appellant admits that the land was assessed to appellant and those through whom she claims from 1904 to 1926, inclusive, the time of bringing the suit; that it was likewise assessed to J. E. Fenn and those claiming under him (appellees' predecessors in title) from 1902 to 1926, inclusive.

The tax records are in evidence, and show the following assessments were made: In 1902 to J. E. Fenn and likewise to "Unknown Owner"; in 1903 to J. E. Fenn, alone; in 1904, 1905, 1906, and 1907 to J. E. Fenn and also to J. T. Grubbs; for the succeeding years (from 1909 to 1924), except in 1908, 1911, and 1915, to one of the Grubbs and to a Fenn, for 1924 and 1925 to M. H. Fenn and E. C. Grubbs; and for 1926 to H. M. (meaning M. H.) Fenn, Acker, and Morgan. Thus Mrs. Acker and her predecessors in title did not annually list the land for taxes for ten years.

The three provisions of the statute (section 6069, Code) as to adverse possession are to the effect that adverse possession cannot confer or defeat title to land (1) unless the party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded for ten years; (2) or unless he and those through whom he claims shall have annually listed the land for taxation for ten years prior to the commencement of the action; (3) or unless he derives title by descent cast or devise from a predecessor in title who was in possession of the land. Cox v. Broderick, 208 Ala. 690, 95 So. 186; Leddon v. Strickland, 218 Ala. 436, 118 So. 651. And, under these provisions of the statute, adverse possession not so held would not defeat the title of Fenn and successors.

As to listing the land for taxes, there was no return in 1908, 1911, or 1915, and the return made was after suit was brought in 1926. There were not ten years of adverse possession in that phase of the statute, before suit brought. The tax certificate shows that J. E. (Jim) Fenn listed the property for taxes from 1902, with only one or two exceptions, to his death and those claiming under him (section 6069, Code) by descent cast, or devise, etc. Cox v. Broderick, supra.

If complainant and those through whom she claims assert title or ownership by or through devise under the will of Emmie C. Grubbs, this insistence must fail, since, as we have indicated, Mrs. Grubbs was not such predecessor in possession of the land. The testimony of Miles and Martin shows a temporary possession by Mr. Grubbs; the testimony of Mrs. Watkins was very unsatisfactory as to the actual possession of the land-except as to one time in 1902 before the alleged claim of J. T. Grubbs. She testified that the house was built thereon in 1908, and was shown to have been destroyed by forest fire a year or so thereafter. And the testimony as to Press Miles and General Martin getting lightwood off part of the land was indefinite or remote as to time and place and the nature of the act or acts, and was not satisfactorily indicated by Mrs. Watkins, Miles, or Martin.

The record to support appellees' title is a mortgage from Fenn and wife to McCormick of date of October 31, 1906, duly recorded, transferred, and assigned by Georgia McCormick as the executrix of the estate of James E. McCormick, and its foreclosure under its terms and purchase by Homer Fenn.

The deed of date of November 13, 1924, to timber rights, etc., on said land from M. H. Fenn by Ava M. Fenn, agent, to A. H. and C. W. Green, described this and other lands by metes and bounds, and appellees went into possession on June 28, 1926, and cut the timber to October 1, 1926.

The testimony of J. C. Green, Tom Cook, W. F. Kennedy, J. G Beaty, C. E. Singleton, W. J. Williamson, and Forest Craig was...