Boren v. Roberts

• Decision Date: 19 November 1982
• Citation: 423 So.2d 208
• Parties: Russell BOREN v. Woodie ROBERTS. 81-856.
• Court: Alabama Supreme Court

Page 208

423 So.2d 208

Russell BOREN v. Woodie ROBERTS.

81-856.

Supreme Court of Alabama.

Nov. 19, 1982.

Phil Laird and Henry C. Wiley, Jr. of Elliott, Laird & Wiley, Jasper, for appellant.

Robert E. Cooper of Rives & Peterson, Birmingham, for appellee.

PER CURIAM.

This is an appeal from a decree establishing the boundary line between coterminous landowners. We affirm.

Boren filed the action against Roberts. The complaint alleged that a dispute had arisen as to the correct position of their common boundary.

Roberts (defendant) acquired the property by two conveyances. The first conveyance from C.V. Yates and Annie Yates occurred in November, 1956, and conveyed the following:

"Begin at the Northwest corner of the Northwest 1/4 of the Northwest 1/4, Section 14, Township 15, Range 5 West, and run along the Forty line to Highway 78, 350 feet more or less, thence run East along said highway 225 feet, thence North 447 feet more or less to Forty line, thence run West to beginning point 225 feet. Containing two acres more or less."

The second parcel was acquired from Marzell Robbins and Dorthy Robbins in March, 1963. This conveyance contained the following description:

"Begin at the NW corner of the NW 1/4 Section 14, Township 15, Range 5 West, containing 40 acres more or less. Surface only. And run East along the Forty line to the NE corner of the W. Roberts property line for a point beginning. Thence continue East 100 feet thence South 509 feet more or less to the U.S. Highway (# 78) thence West along said highway (# 78) 100 feet, thence North 471 feet more or less to the point of beginning."

The Robbinses had acquired this second described tract from the Yateses in April, 1960.

Plaintiff Boren's chain of title also originates with the Yateses. In October, 1960, the Yateses conveyed the following described property to Thomas Earl Raines, John Thomas Raines, and Robert Freeman Raines:

"Begin at the southeast corner of the Marzell Roberts [Robbins] property. Thence run east along U.S. Highway (78) for a distance of 315 feet. Thence run north 210 feet thence run West 315 feet. Thence run south 210 feet to the point of beginning. This lying and being in Walker County and being a part of the NW 1/4 of NW 1/4 of Section 14, Township 15, Range 5 West. Surface only."

In February, 1961, Thomas Earl Raines acquired the property from his co-grantees. In August, 1977, Thomas Earl Raines conveyed the property by the same description to James Dennis. On October 6, 1977, James Dennis conveyed the property, again by the same description, to the plaintiff, Russell Boren.

All of the conveyances in the plaintiff's chain of title find their point of beginning at the southeast corner of the Marzell Robbins property. There is no instrument of conveyance that conveys any portion of the Robbins property to the plaintiff or any of his predecessors in title. It is a portion of the property originally conveyed by Yates to Robbins that the plaintiff is claiming by adverse possession.

A default judgment was entered against the defendant in November, 1979. The trial court set the default judgment aside and held a hearing on the motion. After viewing the property, the trial court fixed the boundary line between the two owners by first finding the correct description of the defendant's property. The court then fixed the east line of the defendant's property as the west line of the plaintiff's property.

On appeal, the appellant argues that the trial court erred in setting aside the default judgment. We cannot agree. Rule 55(c) of the Alabama Rules of Civil Procedure provides:

"In its discretion, the court may set aside an entry of default and the court may set aside a judgment by default within 30 days thereafter."

In Oliver v. Sawyer, 359 So.2d 368 (Ala.1978), we said:

"It is a primary principle of the Alabama Rules of Civil Procedure that the parties to an action should be afforded a prompt and fair trial upon the merits. It is because of this principle that default judgments are not favored, and, while the trial court has discretion to grant such judgments, we have frequently held that this exercise of discretion should be resolved in favor of the defaulting party where there is doubt as to the propriety of a default judgment."

359 So.2d 368, 369-70. We cannot say that the trial court abused its discretion in setting aside the default judgment in this case.

There is some confusion surrounding a purported amendment to the default judgment based upon an alleged agreement. At the hearing on the defendant's motion to set the default judgment aside, the defendant argued that he had not agreed to a settlement of the matter, and the trial court apparently believed him. Again, this is a matter within the trial court's discretion, and we will not reverse a trial court which allows a hearing on the merits absent a showing of abuse of discretion.

Finally, the appellant argues that the...