Beason v. Bowlin

• Decision Date: 29 November 1962
• Docket Number: 7 Div. 505
• Citation: 274 Ala. 450,149 So.2d 283
• Parties: Kenneth BEASON et al. v. Lula Beason BOWLIN et al.
• Court: Alabama Supreme Court

Page 283

149 So.2d 283

274 Ala. 450

Kenneth BEASON et al. v. Lula Beason BOWLIN et al.

7 Div. 505.

Supreme Court of Alabama.

Nov. 29, 1962.

Rehearing Denied Feb. 7, 1963.

Frank B. Embry, Pell City, for appellants.

Starnes & Holladay, Pell City, for appellees.

PER CURIAM.

Complainants, Lula Beason Bowlin, Manley V. Beason, and R. L. Beason, adult children of John L. Beason, who died in November, 1945, and his wife, Sally M. Beason, who died in 1938, filed their bill in the circuit court of St. Clair County, in equity, to sell for division among the joint owners certain lands specifically described in the complaint, there and here referred to as Tracts 1 and 2.

The complaint made certain grandchildren and great grandchildren of John L. and Sally M. Beason parties respondent, along with Tellie Mostiller, Erskin Mostiller and Sennie Hampton, who are not members of the Beason Family, but alleged to be successors in title to Tract 2 described in the complaint.

During the progress of the trial it was stipulated and agreed in open court between the parties, through their respective solicitors of record, that title to the land, the subject matter of this suit, was in August Montgomery, who died intestate sometime after the Civil War between the States, leaving surviving three children, by name, Albert J. Montgomery, Mrs. Fannie Hill and Mrs. Sally M. Beason, the latter being the grandmother and great grandmother of some of the respondents, and the mother of complainants as noted above.

It was further stipulated that John L. Beason, husband of Sally M. Beason, acquired by appropriate conveyances, the each one-third interest of Albert J. Montgomery and Mrs. Fannie Hill, thus, owning without question at the time of his death, said acquired interests in both tracts.

The contested issue in this case is the ownership in 1938, and subsequently until now, the one-third interest of Sally M. Beason, which she inherited from her father, Augustus Montgomery.

The respondents by answers and cross-bills assert that John L. Beason was the owner exclusively of both tracts when he died in 1945. They predicated such claim of ownership on adverse possession against his wife with whom he lived until her death in 1938; also, they contend that John L. Beason devised Tract 2 to his grandson, Kenneth Beason, who, in turn, conveyed to appellants Tellie Mostiller, Erskin Mostiller and Sennie Hampton. The other appellants here claim exclusive ownership by virtue of a devise from their father, James B. Beason, who, in turn, claimed exclusively by will from his father, John L. Beason, the father of complainants. The appellants, if we may broadly state, claim exclusive title to the controverted interest of Mrs. Sally Beason by will, adverse possession as against complainants and other co-owners, and by laches and estoppel, of which they charge the complainants with guilt to the injury of appellants and the other respondents.

The trial court rendered a final decree in favor of complainants and ordered the lands sold in accordance with the prayer for relief. The decree defined the interests of all parties to the lands. The effect of the decree was a judicial determination that Mrs. Sally Beason, at the time of her death, had never parted with title to the one-third interest she inherited from her father, Augustus Montgomery, and that the respondents had never acquired by will, or otherwise, more than their pro rata share as remaindermen in the one-third interest of Mrs. Sally Beason.

Chief Justice Brickell, speaking for the Court in the case of Wells v. American Mortgage Company of Scotland, 109 Ala. 430, 445, 20 So. 136, 142, said:

'* * * And it must be observed that all possessions are presumed to be rightful,--friendly, not hostile to the true title; the presumption casting upon whoever may assert an adverse possession the burden of proof. * * *'

It is without serious dispute in the evidence that John L. Beason and his wife, Sally M. Beason, occupied Tracts 1 and 2, described in the bill, during the lifetime of Mrs. Beason, who, as we have said, died in 1938. If it be conceded that the husband, under any circumstances, can acquire lands of his wife by adverse possession, he certainly cannot do so by having joint possession with her. One of the essential elements of adverse possession is that the possession must be exclusive. 'Two persons cannot hold the same property adversely to each other at the same time.' Hinton v. Farmer, 148 Ala. 211, 213, 42 So. 563, 564, 121 Am.St.Rep. 63; Stiff v. Cobb, 126 Ala. 381, 386, 28 So. 402, 85 Am.St.Rep. 38; Wells v. American Mortgage Company of Scotland, supra.

After the death of his wife, John L. Beason continued to occupy Tracts 1 and 2 until his death on November 20, 1945. This he had a right to do under the law giving the husband the use of his wife's realty, if she dies intestate, as here. Title 16, Section 12, Code of Alabama, 1940.

A question presented for determination is whether or not Mr. John L. Beason's possession of his wife's interest in the two tracts, after her death in 1938 and until his death in 1945, was hostile to the heirs or remaindermen, and if so, was such hostility actually communicated to the joint owners, or imputed to them.

The possession of Mr. Beason under his statutory right of occupation after the death of his wife is not adverse. White v. Williams, 260 Ala. 182, 69 So.2d 847(10).

This court held in the case of Trufant v. White, 99 Ala. 526, 535, 13 So. 83, 86:

'* * * Where there are no relations between the owner and the party in possession,--nothing upon which the possession can be referred to the owner's right,--he is presumed to know of its wrongful character, knowing, as he must, of the fact of possession; but where a relation does exist upon which the possession is referable to the title, the holder of that title is justified in assuming that the possession is subordinate thereto, and held in recognition thereof, until he knows to the contrary. No kind or degree of actual hostility will of itself convert such a permissive into an adverse possession; no sort of claim of ownership on the part of the party in possession will of itself have this effect; and while it may be open to the jury in some cases to find from the circumstances of the possession that the owner had notice of its hostile and exclusive character, no exclusiveness of possession, no hostility, no claim of right antagonistic to the title, will necessarily in any case take the place of direct proof of knowledge on the part of the owner that the possession is no longer held in subscrviency to him. At most, in any case, the circumstances of hostility, exclusiveness and claim of right are only for the jury to consider as tending to show knowledge on the part of the owner; the argument being that the circumstances of the possession were such as that he must have known them, and from them that the possession was no longer held under him, and in recognition of his title. [Citing cases] * * *'

In the case of Foy v. Wellborn, 112 Ala. 160, 165-166, 20 So. 604, 605, it is succinctly observed:

'* * * 'The widow remains in the mansion house and occupies the plantation by the sufferance of the heir, or those claiming under him. Her possession is in no sense hostile or adverse to either.' * * * Not disturbing it, her possession was essentially permissive, and will be regarded as so continuing, unless disclaimed by declarations or acts unmistakably hostile,--the equivalent of an abandonment or termination of the quarantine, of which the heirs had notice or knowledge, or which were so open and notorious that notice or knowledge must be imputed to them.' [Emphasis supplied.]

Pertinent to the inquiry here as to what acts and declarations of Mr. John L. Beason would be necessary to change his permissive occupancy under the statute to one of hostility, our cases have held:

'We need not state any affirmative rule as to what, on the part of the widow having such right (quarantine), will convert her presumptively subordinate possession into one adverse to the title. Doubtless a divestiture of her dower right,...