Bryan v. W. T. Smith Lumber Co.

• Citation: 278 Ala. 538,179 So.2d 287
• Decision Date: 07 January 1965
• Docket Number: 4 Div. 160
• Parties: C. E. BRYAN et al. v. W. T. SMITH LUMBER CO., Inc.
• Court: Alabama Supreme Court

Page 287

179 So.2d 287

278 Ala. 538

C. E. BRYAN et al. v. W. T. SMITH LUMBER CO., Inc.

4 Div. 160.

Supreme Court of Alabama.

Jan. 7, 1965.

Rehearing Denied Oct. 21, 1965.

Prestwood & Prestwood, Andalusia, for appellants.

Thornton & McGowin, Mobile; Poole & Poole, Greenville, and Ben H. Lightfoot, Luverne, for appellee

COLEMAN, Justice.

From an adverse decree, complainants in suit to determine and establish a disputed boundary appeal.

Complainants are two brothers. Respondent, Earl Bryan, is their brother. By bill of complaint filed March 21, 1960, complainants aver that they own an undivided one-third interest in E 1/2 of NW 1/4 of Section 22, T 7 N, R 16 E, in Crenshaw County; that respondent Earl Bryan, owns the other two-thirds interest; that respondent, W. T. Smith Lumber Company, a corporation, sometimes herein referred to as Smith, owns the W 1/2 of NW 1/4 of said section; and that the dividing line between the E 1/2 and W 1/2 of said quarter section is uncertain and disputed. The prayer is that the court enter a decree establishing the true boundary.

Decree pro confesso was entered against Earl Bryan.

By amended answer, filed February 22, 1962, Smith averred lack of knowledge of ownership of E 1/2 of NW 1/4 of said section and demanded proof. As to ownership of W 1/2 of NW 1/4, Smith denied the averments of the bill and averred that Smith now owns that part of W 1/2 of NW 1/4 that lies west of Patsaliga River; that Smith did own that part of W 1/2 of NW 1/4 east of Patsaliga River prior to October, 1960, when it was conveyed to Earl Bryan and his wife; that Earl Bryan was respondent in Case No. 2594 in the Circuit Court of Crenshaw County, in which case the disputed line was established by survey approved by said circuit court; that, on the line in suit, Smith owns only land adjoining that part of the line that lies north of Patsaliga River, that is, land adjoining only the north fifty feet of the line; that, by decree rendered 'February 24, 1959,' the circuit court approved an agreement ordering Smith to convey to Earl Bryan and wife forty-eight acres east of Patsaliga River in W 1/2 of nW 1/4 of said section; that September 29, 1959, the circuit court entered an order confirming a survey made of the line in suit; that in October, 1960, in obedience to the decree, Smith conveyed to Earl Bryan and wife all W 1/2 of NW 1/4 east of the river; that the line in suit is not uncertain and disputed but was established by the circuit court; that the line established by that court is binding on Earl Bryan under the doctrine of res judicata and on complainants under stare decisis. Smith prays that the court, in the suit at bar, confirm the line established by the circuit court.

Smith introduced in evidence the file in Case No. 2594. In that case, Smith, as complainant, filed bill of complaint against Earl Bryan and wife to establish the true boundary between Smith's land and Earl Bryan's land. In its bill, Smith alleged that it owned the W 1/2 and that Earl Bryan and wife owned the E 1/2 of NW 1/4 of Section 22, T 7 N, R 16 E.

Thus it appears that the location of the line between W 1/2 and E 1/2 of NW 1/4 of Section 22 was at issue in the prior suit and is the same line which complainants seek to have the court establish in the instant suit.

It is readily apparent, however, that the parties in the two suits are not identical. The complainants in the instant suit were not parties in the prior suit, and it does not appear that the instant complainants stand in privity with any party to the prior suit.

The prior suit terminated in an agreement entered into by Smith and Earl Bryan and his wife. The circuit court, by decree of February 25, 1959, confirmed the agreement and by amendment to the decree, made March 20, 1959, the circuit court retained jurisdiction for making orders to enforce the agreement.

By its terms, Smith and Earl Bryan agreed that Patsaliga River is to be the dividing line in the W 1/2 of W 1/2 of Section 22; the land west of the river to be Patsaliga River appears to meander on a course, roughly from north east to south west, diagonally across section lines.

owned by Smith and the land east of the river to be owned by Earl Bryan and wife; this to be accomplished by appropriate conveyances.

With respect to the line, or part of the line, involved in the instant case the parties agreed as follows:

'6. The west line of the Northeast Quarter of Northwest Quarter of Section 22, Township 7 North, Range 16 East will be run south to the river from the existing corner, said corner being witnessed by twenty-four inch water oak and designated on the map of Carlos Botts now in evidence in this proceeding as Exhibit four.'

The agreement also concerned other lands of the parties, mutual conveyances, and adjustment to compensate for differences in value of timber conveyed.

It appears that some difficulty was experienced in carrying out the agreement. On August 5, 1959, Smith filed its petition complaining that Earl Bryan and wife would not perform their part of the agreement, and alleging, among other things, that Earl Bryan and wife 'are now claiming that they do not own the entire interest in the E 1/2 of NW 1/4 of Section 22 . . . and that they cannot comply with the land exchange called for in the agreement . . ..'

On September 1, 1959, Earl Bryan and wife replied to Smith's petition, saying:

'5. That in answer to paragraph seven the respondents admit they are not the sole owners of the E 1/2 of NW 1/4 of section 22, township 7 north, range 16 east, but only own an undivided foursixths interest in said land and had the complainant made inquiry of the respondents interest in said land it would have been informed of respondents interest in said land.'

There appear in the transcript as exhibits several deeds purportedly executed by Smith to Earl Bryan and wife. Apparently these deeds were executed in October, 1960, in an effort to carry out the agreement contained in the decree of February 25, 1959.

All this is significant to show that, in August, 1959, Smith, according to its own petition, had notice that Earl Bryan did not own the entire fee in E 1/2 of NW 1/4 of Section 22; and that Smith, with such notice, proceeded to carry out the agreement by executing deeds fourteen months later in October, 1960. The record shows that process had been served on Smith in the instant case seven months earlier on March 23, 1960. We do not hold, however, that any such notice to Smith was necessary to support the result which we reach on this appeal.

The foregoing will probably suffice to show the pertinent elements of the decree in the prior suit which Smith sought to interpose as binding against complainants in the instant case.

In the instant case, the court decreed '. . . that the decree rendered by the Circuit Court of Crenshaw County correctly defines the land line between the coterminous owners, a decree is hereby rendered sustaining the line as established by the Circuit Court as the line between the coterminous owners in this suit.'

Complainants assign rendition of the decree as error. There are six assignments of error. Appellants argue them together. Appellee Smith says that at least one assignment is bad, and invokes the rule that where several assignments are argued together, and one is without merit, the others will not be considered.

The instant writer, as well as others, has been guilty of stating the rule as relied on by appellee Smith. Bertolla v. Kaiser, 267 Ala. 435, 440, 103 So.2d 736. The rule, that we consider no assignments when several are argued together and one is without merit, applies only when they are All six assignments here are related and are governed by the same legal principles and argument. They assert only one error, i. e., that the court erred in rendering the decree. We do not commend the assignments as examples of good pleading but they do state, however imperfectly, that the court erred in rendering the decree, and arguing them together does not preclude consideration of one assignment, even if others should be without merit.

not kindred or related. Southern Electric Generating Company v. Lance, 269 Ala. 25, 33, 110 So.2d 627. Where several assignments are governed by the same legal principles and argument, it is not objectionable to argue them in bulk in the brief. Socier v. Woodard, 264 Ala. 514, 518, 88 So.2d 783.

Appellee singles out assignment 6 as being without merit. It recites:

'6. The Court erred in rendering its decree which in effect declares that these Appellants are not entitled to their day in Court.'

Appellee Smith says '. . . this does not constitute an assignment of error.'

In Robinson v. Murphy, 69 Ala. 543, 545, the assignment was: "the court below erred in the final decree rendered Oct. 8th, 1881." This court said that the assignment is very general, yet it conforms to the long practice in this court, and that, when the decree is assailed as erroneous in the whole, an assignment in the general terms of this assignment must be accepted as conforming to the rules of practice. See Birmingham Electric Co. v. Alabama Public Service Commission, 254 Ala. 140, 156, 47 So.2d 455, Paragraph .

Assignment 6 in the case at bar is imperfect, but is due to be considered in spite of its imperfection, because it fairly asserts that the court erred in rendering the decree, which, if erroneous at all, is erroneous in the whole.

Appellants argue that the circuit court decree is not conclusive against them, because they were not parties or privies to the suit in the circuit court, and that the court in the instant case erred in rendering a decree which declares that complainants are concluded by the circuit court's decree.

Broadly stated, to sustain a plea of res judicata, the parties must be the same, the subject matter the same, the point must be directly in question, and the judgment must be rendered on that point. Ivey v. Wiggins, 271 Ala....