Bates v. Flowers

• Decision Date: 21 November 1929
• Docket Number: 8 Div. 90.
• Citation: 220 Ala. 205,124 So. 661
• Parties: BATES ET AL. v. FLOWERS ET AL.
• Court: Alabama Supreme Court

124 So. 661

220 Ala. 205

BATES ET AL. v. FLOWERS ET AL.

8 Div. 90.

Supreme Court of Alabama

November 21, 1929

Appeal from Circuit Court, Limestone County; James E. Horton, Judge.

Suit by Mabel Bates and another against Fannie Flowers, Annette Black, Bertha Black, and others. From a decree for the two respondents last named, complainants appeal. Affirmed.

Fred Wall and D. L. Rosenau, Jr., both of Athens, for appellants.

J. G Rankin, of Athens, for appellees.

FOSTER J.

This is a suit in equity for the sale of land for division in which two of the respondents deny the title of complainant and assert in themselves an adverse claim. An issue as to such claim was tried by a jury in accordance with section 6631 et seq., Code 1923. There was a verdict for the respondents claiming the title, and a decree of the court rendered for them upon the verdict. Complainants have secured a bill of exceptions, and seek to review and assign for error the action of the court separately in refusing two written charges to the jury as requested by them. The only questions therefore presented by this appeal relate to the sufficiency of the charges refused appellants.

Complainants claim that they and respondents are owners of the land as heirs at law of James L. Black, deceased; that after his death, though his widow conveyed it to one of the children the possession of such child was not adverse, though it may have extended for over ten years, including the possession of his widow and child since his death. The widow and child are the respondents claiming title of the land. It was not a part of the homestead of James L. Black, and, though the widow who conveyed it to Ross Black (one of the heirs), may have had dower rights, she had no quarantine. The question therefore was whether Ross and his heirs after his death had adverse possession as against the other heirs. James L. Black died in 1894; his widow had possession until May 23, 1917, when she conveyed to Ross by deed recorded September 1, 1917. He died February 23, 1927, and his heirs claim that he and they had adverse possession until this suit was begun September 15 1927. The widow of James L. Black had married again when she (joined by her then husband) deeded the land to Ross Black, and afterwards she died in 1926.

The issue submitted to the jury on which the evidence was taken was whether the possession of Ross Black and his heirs was sufficient to vest title in them, as against the other heirs of James L. Black.

None of the rulings of the court on the evidence are here presented for review, nor the theory of law on which the issue was tried, nor the sufficiency of the evidence, nor any portion of the oral charge to the jury. It is necessary, therefore, to refer to the principles of law applicable to the facts here shown only to review the sufficiency of the two refused charges.

The possession by a widow claiming as dowress of land belonging to her husband's estate, though without quarantine rights, is prima facie not adverse to his heirs, yet it may become so if sufficiently converted into a hostile holding and then may ripen into title in her. Hays v. Lemoine, 156 Ala. 465, 47 So. 94; Lewis v. Johnson, 206 Ala. 156, 89 So. 447; Sloss-Sheffield S. & I. Co. v. Taff, 178 Ala. 382, 59 So. 658. But there must be more than possession by his dowress with bare assertion of ownership. Martin v. Long, 200 Ala. 210, 75 So. 968; Allison v. Robinson, 136 Ala. 434, 34 So. 966; Robinson v. Allison, 124 Ala. 325, 27 So. 461. A divestiture of her dower right by an attempted conveyance of it to an heir, brought to the notice of the other heirs, would enable the grantee of the widow to set up an adverse claim and to perfect ownership thereunder according to the usual rules applicable to the acquisition of title by adverse possession when the claimants are joint heirs at law or tenants in common of the land. Bodeker v. Tutwiler, 211 Ala. 537, 100 So. 776; Barber...