Chandler v. Pope

• Decision Date: 25 November 1920
• Docket Number: 7 Div. 82
• Citation: Chandler v. Pope, 205 Ala. 49, 87 So. 539 (Ala. 1920)
• Parties: CHANDLER v. POPE.
• Court: Alabama Supreme Court

87 So. 539

205 Ala. 49

CHANDLER v. POPE.

7 Div. 82

Supreme Court of Alabama

November 25, 1920

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Ejectment by J.W. Pope against Laura C. Chandler. Judgment for plaintiff, and defendant appeals. Affirmed.

Thomas H. Stevens and P.E. Culli, both of Gadsden, for appellant.

Motley & Motley, of Gadsden, for appellee.

GARDNER J.

Statutory action of ejectment for the recovery of 120 acres of land brought by appellee against appellant, resulting in verdict and judgment for the plaintiff, from which this appeal is prosecuted.

The plaintiff offered in evidence a deed from one Nanny Dill conveying a life estate to Joel and Sarah Chandler in 160 acres of land, under date of May 11, 1860, with remainder vested in Julia Ann, Melissa William, and Brewster Chandler, children of said Joel and Sarah Chandler. After the death of the life tenants there was a division of the 160 acres by these brothers and sisters Brewster Chandler being deeded the 40 acres upon which he resided, and deeds were executed the others as to the separate 40's. In this division Brewster Chandler and his wife, Laura C. Chandler, executed deeds, duly acknowledged, to the 120 acres here involved, which adjoined that upon which Brewster Chandler was residing, and upon the conveyances from these grantees the plaintiff rests his title.

Laura C. Chandler, appellant here, is the widow of Brewster Chandler, who died in 1915, and her only defense to this action is upon the doctrine of adverse possession and prescription, relying upon the possession of her husband for more than 20 years. The proof in her behalf tended to show that she and her husband had resided upon the 40 acres of land which belonged to him (and not here in controversy) for more than 20 years after the execution of these deeds, and that he cultivated a portion of the three 40's adjoining, and paid the taxes thereon each year. Melissa Chandler, a sister of Brewster Chandler, lived with him for more than 10 years, and another sister, Mrs. Melton, a widow, who claimed no interest in any of the land, was placed on Melissa's 40, where she remained for more than 20 years, cultivating a portion of that 40 as well as some of the others. She paid no rent to any one, and none was demanded. The defendant testified that she did not think her husband did any clearing on the land after the death of the life tenants, and no improvements appear to have been made by him upon the land. Defendant further testified that she "reckon" her husband claimed the land; that he called it his and took care of it, but she never heard him tell any of the others that he was claiming it, nor did she ever tell them anything to that effect. The evidence further shows that the presence of Mrs. Melton upon the land was merely to give her assistance by the others and was a matter of family convenience. The defendant also testified that none of the others had anything to do with the land, and on some occasions a portion of these 40's was rented out--her husband collecting the rent. The defendant acknowledged the execution of these deeds "dividing up this land"--to use her language--recalling the transaction distinctly.

We think the foregoing comprises the substance of the evidence as to adverse possession relied upon by defendant in this cause. The law governing cases of this character is well stated in the following quotation found in Yancey v. Savannah & West. Ry. Co., 101 Ala. 234, 13 So. 311, which has found frequent repetition in subsequent decisions of this court:

"By the execution and delivery of a deed of land the entire legal interest in the premises becomes vested in the grantee, and if the grantor continues in possession afterwards, his possession is not that of owner, but of a tenant of the grantee. He will be regarded as holding the premises in subserviency to his grantee, and nothing short of an explicit disclaimer of such a relation and a notorious assertion of right in himself, will be sufficient to change the character of his possession, and render it adverse to the grantee."

A grantor remaining in possession is presumptively but a tenant at sufferance of the grantee. Daniels v. Williams, 177 Ala. 140, 58 So. 419. See, also, Abbett v. Page, 92 Ala. 571, 9 So. 332; Williams v. Higgins, 69 Ala. 517; Wells v. Sheerer, 78 Ala. 142; Gewin v. Shields, 187 Ala. 153, 65 So. 769. And the fact that the possession has continued over a period of 20 years does not alter this rule, for, as said by the New York court in Jackson v. Burton, 1 Wend. (N.Y.) 341:

"Although the defendant remained in possession after the conveyance, it was not as owner, but as tenant to his grantee, and nothing but a clear, unequivocal, and notorious disclaimer of the title of his landlord could render his possession, however long continued, adverse."

So it has also been held that the mere fact that the grantor paid taxes on the land does not affect the rule. 2 Corp.Jur. 146.

It is of course, well recognized that the grantor remaining in possession may become an adverse holder...