Courtney v. Boykin

• Decision Date: 10 March 1978
• Citation: 356 So.2d 162
• Parties: . Ocllo G. BOYKIN. SC 2650. Supreme Court of Alabama
• Court: Alabama Supreme Court

Page 162

356 So.2d 162

Benjamin F. COURTNEY v. Ocllo G. BOYKIN.

SC 2650.

Supreme Court of Alabama.

March 10, 1978.

Robert A. Wills, of Owen, Ball & Wills, Bay Minette, for appellant.

Sidney H. Schell, of Pillans, Reams, Tappan, Wood, Roberts & Vollmer, Mobile, for appellee.

PER CURIAM.

This appeal is from a judgment rendered against Benjamin F. Courtney, Plaintiff-Appellant, in favor of Ocllo G. Boykin, Appellee, in an action in the nature of ejectment. The trial court found that Boykin had established title to the subject property by adverse possession, stating, in part:

"On November 29, 1976 this cause came on for trial by the Court, sitting without a jury, and after considering the record, the exhibits and testimony of the witnesses, having viewed the lot in question with the counsel for both parties on December 1, 1976, and after having studied the applicable law, the Court finds as follows:

"1. The Plaintiff, Benjamin F. Courtney, owned the property in question in this cause on April 2, 1959, by virtue of a trustee's deed from Albert I. Patrick, which deed was dated October 26, 1954, and recorded in Deed Book 214, pages 569-70, Baldwin County, Alabama records.

"2. The Plaintiff conveyed the property to Edna F. Anderson on April 2, 1959 by deed recorded in Deed Book 276, page 529, Baldwin County, Alabama records. On April 2, 1959, Edna F. Anderson executed to Benjamin F. Courtney, Plaintiff herein, a mortgage describing the subject property, which mortgage is recorded in Mortgage Book 314, page 477, Baldwin County, Alabama records.

"3. Edna F. Anderson conveyed subject property to Ocllo G. Boykin on April 24, 1959 which deed is recorded in Deed Book 288, page 258, Baldwin County, Alabama records.

"4. On June 26, 1961 Benjamin F. Courtney, acting by and through James R. Owen, as Auctioneer and Attorney-in-fact for Edna Anderson, foreclosed the aforesaid mortgage and the foreclosure deed is recorded in Deed Book 305, page 545, Baldwin County, Alabama records. Mrs. Boykin subsequently learned of the foreclosure and in 1965 filed a lawsuit to clear the title by redeeming from Courtney in the U.S. District Court for the Southern District of Alabama but that Court found that it did not have jurisdiction of the cause at that time since the value of the lot was less than the $10,000.00 Federal diversity jurisdictional limit.

"5. Ocllo G. Boykin then filed a lawsuit during 1964 against Benjamin F. Courtney in the Circuit Court of Baldwin County, Alabama, in Equity (Case No. 8198) seeking to exercise her statutory right of redemption from the aforesaid foreclosure sale. This Court in 1967 entered an order sustaining a demurrer to the amended complaint; finding that the complaint could not be amended to give it equity and dismissed the complaint. No appeal was taken from this final order.

"6. The Court finds that the Defendant, Ocllo G. Boykin, has had such open, continuous, exclusive, hostile and notorious possession of the subject property as applied to the adverse holding of land by another evidence by such act and conduct as are sufficient to put a man of ordinary prudence on notice of the fact that the land in question was held by her as owner.

"7. The evidence tended to show that Mrs. Boykin and her family made use of the land in question for a variety of purposes, such as, using the property as a garbage dump; as a means of access by engaging contractors to build and maintain an asphalt road onto the property and a red clay road across the property; building and maintaining a fence across the south end of the lot; burning brush annually on the property for mosquito control; using the property as a parking area; using a bulldozer to move sand from the road and to stop the encroachment of sand upon the road; building a boardwalk over it; by maintaining a snow fence and other acts of possession; and assessing and paying the taxes. Mrs. Boykin owns both Lots 10 and 12 on either side of the lot in question and she or members of her family had built houses thereon and continued their use and occupancy as part of their compound.

"8. The possession of the Defendant, Ocllo G. Boykin, of the subject property was so open, notorious and hostile that the Plaintiff could reasonably be presumed to have notice of her possession or of her claim of title to the property which continued under color of title since April, 1959.

"9. It is the finding of this Court that the Defendant, Ocllo G. Boykin, had exclusive, open, notorious and continuous possession of the subject property coupled with color of title and the annual listing and payment of taxes for the statutory period as set forth in Code of Alabama, Title 7, Section 829 (sic) to give her title by adverse possession."

In 1965, Boykin filed a suit in the Circuit Court of Baldwin County seeking to exercise a statutory right of redemption as the vendee of the foreclosed mortgagor. Courtney's demurrer to the complaint was sustained on November 16, 1967, and the court found that the complaint could not be amended so as to give it equity. The complaint was ordered dismissed and no appeal was taken from this order.

Both Courtney and Boykin have regularly assessed and paid taxes on the property since 1959.

The only question presented is whether the trial judge's finding that Boykin had adversely possessed the tract was clearly and palpably wrong.

Title 7, § 828, Code, provides:

"Adverse possession cannot confer or defeat title to land unless the party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded in the office of the judge of probate of the county in which the land lies for ten years before the commencement of the action; or unless he . . . shall have annually listed the land for taxation in the proper county for ten years prior to the commencement of the action, if the land is subject to taxation; or unless he derives title by descent cast, or devise from a predecessor in the title who was in possession of the land."

Section 828 is written in the alternative. Satisfaction of any one of the three alternatives satisfies the statute. M. C. Dixon Lumber Company, Inc. v. Mathison, 289 Ala. 229, 266 So.2d 841 (1972); and Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972).

In addition to fulfilling the requirements of one of the three alternatives, all essential elements of adverse possession must be met. In this regard, this Court has held:

". . . In order to establish adverse possession, as against the holder of the legal title, 'the law is stringent in requiring clear proof of the requisite facts. There must be, first, an actual occupancy, clear, definite, positive, and notorious; second, it must be continued, adverse, and exclusive during the whole period described by the statute; third, it must be with an intention to claim title to the land occupied.' Washburn on Real Property (4th Ed.) pp. 135, 136. 'Where a party enters upon land and takes possession, without claim of title or right, his occupation is subservient to the paramount title, not adverse to it.' " McDaniel v. Sloss-Sheffield Steel and Iron Co., 152 Ala. 414, 44 So. 705 (1907).

See also, Miller v. Jones, 280 Ala. 612, 196 So.2d 866 (1967); Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962); and 2 C.J.S. Adverse Possession, § 25. Moreover, each of these elements must be shown to have existed the entire term. Miller, supra; Raper v. Belk, 276 Ala. 371, 162 So.2d 466 (1964); and Millican v. Mintz, 255 Ala. 569, 52 So.2d 207 (1951).

Because adverse possession divests title from the record titleholder, a very strict burden of proof rests upon the party claiming title by it. Dixon Lumber, supra; James v. Mizell, 289 Ala. 84, 265 So.2d 866 (1972); Hagan v. Crowley, 265 Ala. 291, 90 So.2d 760 (1956); and Webb v. King, 268 Ala. 282, 105 So.2d 653 (1958). Rare and widely separated acts do not satisfy this burden; they constitute mere transitory trespasses. Hagan, supra, and Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972).

Boykin claimed that she had acquired title pursuant to the first alternative in Section 828 under color of title for ten years. She also claimed that she adversely possessed the lot and listed it for taxation for ten years.

Title by adverse possession may be obtained by listing the property for taxation for the statutory period. Title 7, § 828, Code. The stipulation that Boykin assessed and paid taxes on the property for over ten years satisfies the first element of this alternative. This, however, does not fully satisfy this option because such listing for taxation is not alone sufficient to give her title. It must also be shown that she had been in actual adverse possession of the land during the ten years she listed the property for taxation. Hagan v. Crowley, supra. See also, Ford v. Washington, 288 Ala. 194, 259 So.2d 226 (1972); and Webb v. King, 268 Ala. 282, 105 So.2d 653 (1958).

Unquestionably, there was evidence that Boykin, as owner of Lots 10 and 12 had used subject Lot 11 in ways as indicated by the trial court's finding in paragraph 7 of his order. Appellant says, however, that possessory acts by Boykin prior to the date of the foreclosure deed should not have been considered by the trial court, and that any right, title or interest which Boykin had in the property was divested when the mortgage was foreclosed and title was vested in him, subject only to Anderson's or Boykin's statutory right of redemption, which right was not timely exercised. Courtney also contends that Boykin's possessory acts after foreclosure of the mortgage were subservient to the superior title of Courtney and were presumed permissive.

It is obvious that the trial judge considered possessory acts prior to the date of the foreclosure deed because of the findings he made in paragraph 7 of his order. Boykin, in brief, answers Courtney, as follows:

". . . Whether Mrs. Boykin was or was not holding subservient to Mr....