Chavers v. Mayo

• Citation: 79 So. 594,202 Ala. 128
• Decision Date: 27 June 1918
• Docket Number: 3 Div. 316
• Parties: CHAVERS et al. v. MAYO.
• Court: Alabama Supreme Court

79 So. 594

202 Ala. 128

CHAVERS et al. v. MAYO.

3 Div. 316

Supreme Court of Alabama

June 27, 1918

Appeal from Circuit Court, Autauga County; Leon McCord, Judge.

Bill by Oma Chavers and others against J.W. Mayo. From a decree dismissing the bill and adjudging costs against complainants they appeal. Affirmed.

P.E Alexander and Guy Rice, both of Prattville, for appellants.

Gipson & Booth, of Prattville, for appellee.

THOMAS J.

The bill, which was to remove cloud from title, was filed December 20, 1915. On final submission a decree was rendered for the defendant, dismissing complainants' bill and adjudging that "the complainants pay the cost in this behalf expended for which execution may issue."

The appeal bond filed July 23, 1917, recited that Oma Chavers and others were complainants, and J.W. Mayo and others were defendants. Its condition was that:

"Whereas, J.W. Mayo obtained a decree against Oma Chavers et al. in the above-entitled cause in the circuit court, in equity, of Autauga county, on the 2d day of July 1917, from which decree the said Oma Chavers et al. have obtained an appeal returnable to the next term of the Supreme Court of Alabama: Now, therefore, if the said Oma Chavers et al. shall prosecute the said appeal to effect," etc.

The assignment of errors was joint, on behalf of complainants.

The original bill exhibited as the complainants therein Oma Chavers, F.S. Barber, J.R. Barber, and Eliza Wilson, and as respondents J.W. Mayo and Leola Cook. By amendment Leola Cook was stricken as a respondent and made a complainant.

On March 6, 1916, before the original bill was amended and before answer of respondent Mayo was filed, "a protest" of one of complainants was filed, and is now made a part of the record. Among other things, it recited, "Comes J.R. Barber, one of the complainants in the above-styled cause, and moves the court to strike his name from the complaint and dismiss this bill of complaint so far as the same may or does affect him in all matters pertaining to this proceeding," and assigned as grounds: (1) That said complainant had no interest in the subject-matter of the suit; (2) that he did not authorize any one to make him one of the complainants; (3) that he refuses and has refused to become responsible for costs and expenses which may be incurred in the prosecution of the suit; (4) that he was made a party complainant without his authority, and to comply with some supposed rule of equity pleadings, by the complainants who are active in the prosecution; and (5) that he had no interest in the subject-matter of said proceedings, either as complainant or as respondent. Said complainant in said protest asked that his name be stricken from said bill of complaint, and prayed judgment of the court whether he should remain a party to said cause, etc.

After filing this pleading, no action being taken thereon by the court or by the real parties to the cause, said Barber could not thereafter be held to be a complainant. The effect of his disclaimer was that of a general appearance for a limited purpose, making him a party respondent subject to the jurisdiction of the court, and the decree then rendered concluding his interest in the subject-matter of the litigation. Fowler v. Brown, 51 Neb. 414, 71 N.W. 54; Isham v. Miller, 44 N.J.Eq. 61, 14 A. 20; Prescott v. Hutchinson, 13 Mass. 441; 6 Ency.Pl. & Pr. 721; Maddock, Ch.Pr. 336; Smith's Ch.Pr. 275; Story's Eq.Pl. (10th Ed.) § 838; 1 Daniell's Ch.Pr. (6th Ed.) § 706, p. 703; Cooper's Eq.Pl. 308, 311; Tedder v. Steele, 70 Ala. 347; Bromberg v. Heyer, 69 Ala. 22.

If the complainants believed that said Barber had an interest in the lands, and that they were entitled to make him a party for his answer in aid of the suit against the real respondent, said Barber, by proper affirmative action, would have been made a party, and his answer required. Bromberg v. Heyer, 69 Ala. 22, 24. If the disclaimer was improperly filed, a motion to strike it from the file should have been entertained; or, if disclaimer was under oath and complainants were of opinion they were entitled to Barber's answer as to his interest, the insufficiency of the paper filed as an answer could have been tested by exception thereto. Sims' Ch. Pr. § 401, and authorities; 2 Daniell's Ch.Pr. 808; Bromberg v. Heyer, 69 Ala. 22. Having acquiesced in the sufficiency and truth of the disclaimer or answer, by omitting to test the same by proper motion or exception, on this appeal, neither party will be permitted to successfully insist that Barber was a complainant appealing and joining in the assignment of errors.

The final decree injuriously affected complainants' several interests in the lands; all having prosecuted an appeal and jointly assigned errors, the assignment is unavailable unless well taken as to all the appellants. If all of the complainants were not injured by the rendition of the decree, such complainants (appellants) should have asked and had a severance in this court from other appellants not so affected, after which separate errors should have been assigned. Hall v. First Bank of Crossville, 196 Ala. 627, 72 So. 171; Kimbrell v. Rogers, 90 Ala. 339, 7 So. 241; Lillich v. Moore, 112 Ala. 532, 20 So. 452; Hillens v. Brinsfield, 113 Ala. 304, 21 So. 208; Davis v. Vandiver, 160 Ala. 454, 49 So. 318; Adams v. Bibby, 194 Ala. 652, 69 So. 588; Mobile Temperance Hall Asso. v. Holmes, 195 Ala. 437, 70 So. 640. That is to say, since McGehee v. Lehman, Durr & Co., 65 Ala. 316, 320, it has been a rule of practice in this court to disregard assignments of error made jointly, as to the matters which are available to some of the appellants only. This rule is founded on the reason that parties cannot claim a reversal because of errors not injurious as to them. Roberts v. Trawick, 13 Ala. 68; Walker v. Jones, 23 Ala. 448; Magruder v. Campbell, 40 Ala. 611.

It is shown by the evidence that the parents of the complainants, John L. Barber and Nancy C. Barber, died intestate, respectively, in August, 1895, and August, 1909; that the lands in question were owned by John L. Barber, and that he was in possession of same before and at the time of his death; and that thereafter his wife, with complainants, or some of them, remained on the land until the date of her sale to J.W. Mayo, August 21, 1903, on which date Mayo made her a deed to a specifically described two-acre tract of said land, which she moved upon with her family, and occupied as a homestead. It is without dispute that after the death of Mr. Barber no homestead or dower rights in any of said lands were claimed, allowed, or set apart to her as such widow. For the purposes of this decision, it may be taken as a fact that for a while she occupied the land under her quarantine right, though respondent denies that she was holding possession of the land after the death of her husband as a quarantine right, or that her possession was that of a life tenant. Respondent says she had or acquired a superior title therein, incompatible with a quarantine right, under which she conveyed to Mayo, and that this conveyance, with claim of ownership and possession thereunder, was a denial of the right of her children (complainants here) as heirs at law and next of kin of her deceased husband. We will not discuss the nature and character of this superior title alleged to have been held by Mrs. Barber, believing it to be unnecessary.

Acquiescence in, or knowledge of, the assertion of an adverse right and possession thereunder for an unreasonable time is the basis of the rule of laches, which rule, after lapse of time, is presumed to attach where the equity of the case demands. Veitch v. Woodward Iron Co., 76 So. 124. Complainants cannot justify their long delay after Mrs. Barber's sale to Mayo and his adverse possession thereunder in asserting their rights or claim of ownership under the authority of Winters v. Powell, 180 Ala. 425, 61 So. 96, because of the fact that said lands were not impressed with a life estate. The right of homestead without occupancy as such, or the right of dower unassigned, did not amount to an estate in the lands, but only to a right of action for the lands.

The property not being subject to a life estate in Mrs. Barber at the time of her sale, her sale or attempted sale thereof to Mayo can only be held to have been a sale of the fee to the 240 acres in question; and his possession and claim of ownership thereunder and thereafter would suffice to complete the bar of the statute if retained for sufficient length of time.

In Winters v. Powell, supra, the...