Ballard v. Johns

• Decision Date: 22 March 1888
• Citation: 84 Ala. 70,4 So. 24
• Parties: BALLARD v. JOHNS.
• Court: Alabama Supreme Court

4 So. 24

84 Ala. 70

BALLARD v. JOHNS.

Supreme Court of Alabama

March 22, 1888

Appeal from probate court, Montgomery county; F. C. RANDOLPH, Judge.

Suit by Z. T. Ballard, plaintiff and appellee, against Barney Johns defendant and appellant, to obtain a partition and sale of certain lands claimed to be held by them as tenants in common. Judgment for plaintiff, and defendant appeals.

Moore and Findley, for appellant.

Watts & Son, for appellee.

CLOPTON J.

Section 3512 of the Code, being a section of the chapter relating to the partition of property held by joint owners, declares "No division or allotment can be made under this chapter where an adverse claim or title is asserted by any one, or brought to the knowledge of the commissioners or judge of probate." Under the statute as construed when this case was before us on a former appeal, the assertion of an adverse claim or possession must be bona fide, and a false or unsupported assertion is not sufficient to oust the jurisdiction of the probate court. It was held that the probate court did not err in holding that there had been no sufficient adverse possession by Ballard, who set up a claim to a part of the land. Ballard v. Johns, 80 Ala. 32. On the remandment of the cause, the adverse possession of Ballard was not set up in the answer to the petition as amended, but the adverse claim and possession of Ellen Johns was duly pleaded. The petition, as amended, seeks the sale for partition of the E. 1/2 of the N.E. 1/4 of section 17, township 13, range 18, and five acres adjoining on the west. The record discloses that the land set forth in the amended petition was sold by the sheriff in September, 1848, under a venditioni exponas, as the property of Zephaniah Johns and E. M. Bassey, and was purchased by John W. Hughes. In 1851, Hughes conveyed to W. A. Johns the N.W. 1/4 of the quarter section mentioned in the petition; and in December, 1870, W. A. Johns conveyed to Ellen Johns the land described in the amended petition, except the five acres, who continued in possession, claiming the land as her own, and exercising acts of ownership, until her death, which occurred in September, 1884. The petition alleges that the petitioner and the defendants therein, the estate of Ellen Johns being one of them, are tenants in common by inheritance from Zephaniah Johns and his other children who died without issue since his death. The statute, in terms, denies to the probate court the power and jurisdiction to adjudicate, on a petition for the partition of lands, adverse claims and titles....