Davis v. Bingham
| Decision Date | 19 November 1895 |
| Citation | 111 Ala. 292,18 So. 660 |
| Parties | DAVIS ET AL. v. BINGHAM ET AL. |
| Court | Alabama Supreme Court |
Appeal from chancery court, Jackson county; Thomas Cobbs Chancellor.
Bill by W. H. Davis and others against Lewis Bingham, Sr., and others for a sale of land and for partition. From a decree dismissing the bill, plaintiffs appeal. Affirmed.
Martin & Boulden, for appellants.
D. D Shelby and S. S. Pleasants, for appellees.
The bill was filed on the 12th day of February, 1891, in the chancery court, to procure a decree for the sale of land, for division among tenants in common, upon the ground that it could not be equitably partitioned among them. The complainants claim title as the heirs of James Bingham deceased, who was seised and possessed of the land at the time of his death in 1861, and they allege that the defendants are also the owners of certain interests therein as heirs of the same ancestor. The bill also alleges that one of the defendants, Lewis Bingham, Sr., claims to be the owner of the entire right, title, and interest in said land under a deed which he procured from his father, Thomas Bingham purporting to convey the entire fee therein, and that said Lewis Bingham, Sr., claims that his father procured a title to said land by 10 years' possession under claim of right after the death of James Bingham, and previous to the execution of said deed, although it alleges the fact to be that Thomas Bingham never held adversely to them. The answer of Lewis Bingham, Sr., which was adopted by the other defendants, denies the title of the complainants, asserts the loss of their title by reason of the alleged adverse possession of Thomas Bingham for the statutory period, and insists that the respondent acquired a good, absolute title by the said conveyance from Thomas Bingham to him, which was executed on the 8th day of December, 1887, since which time, he states, he has been in possession of said real estate continuously. It will thus be seen that an issue of fact was presented by the bill and answer upon the question of adverse possession vel non, by Thomas Bingham, the grantor of the main defendant. Much testimony was taken, the parties on both sides proceeding as if the action were ejectment, and the litigated questions in the case seem to have been whether Thomas Bingham had been in uninterrupted possession of the land for a period of 10 consecutive years, exclusive of the period, during the Civil War, when the operation of the statutes of limitation was suspended, and if so, whether his possession was hostile to, or in recognition of, the heirs of James Bingham, his son. By far the larger part of the mass of testimony found in the record relates to the questions of the fact, duration, and character of Thomas Bingham's possession of the land, or a part thereof, prior to his conveyance to Lewis Bingham, Sr., and to these questions counsel have entirely directed their arguments in the briefs on file. As we will be forced to declare, for reasons to be hereafter stated, that the chancery court was without jurisdiction to render a decree for the sale of the land, which was the decree sought by the bill, we will express no opinion on this issue of fact.
The testimony shows, without dispute, that at the time of the filing of the bill, the respondent Lewis Bingham, Sr., was in the actual possession of a portion of the land, having caused five acres thereof to be cleared and fenced in 1890, which he subsequently cultivated, and that he claimed all of it, under the deed from his father, which was good as color of title and which served to extend his actual possession to the entire tract. This defendant, being in possession under a conveyance from a stranger to the title of complainants, purporting to pass the entire estate in fee simple, and claiming the lands as his own, and for himself exclusively, must be regarded as having disseised the complainants. However clear their title may seem to be, there remains in them only the right of entry, which will support ejectment, or the corresponding statutory real action. McMath v. De Bardelaben, 75 Ala. 68. This operated as a disseisin or ouster of the complainants, destroying the holding together as joint owners, and fixed such ouster as a true existing status. Although this situation of the parties would not oust the jurisdiction of the chancery court to decree partition, unless we depart from our more recent holdings, it would...
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Sandlin v. Anders
...statute was considered in Brown v. Hunter, 121 Ala. 210, 25 So. 924. After referring to decisions in Sellars v. Friedman, supra, and Davis v. Bingham, supra, court said: "The manifest purpose of this act was to obviate the difficulties pointed out in the two decisions last above referred to......
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Crausby v. Crausby
...and powers of the chancery court have been extended, and the statute amended in this respect, since the decision of the case of Davis v. Bingham, supra, and questions of title or adverse possession may now determined if the proceeding to sell be in the chancery court; yet it does not follow......
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Barry v. Stephens
...which they can assert in a court of law, equity cannot be resorted to as a substitute. Hardeman v. Donaghey, 54 So. 172; Davis v. Bingham, 111 Ala. 292, 18 So. 660; Morgan v. Lehman Durr & Co., 92 Ala. 440, 9 So. Echols v. Hubbard, 90 Ala. 309, 7 So. 817. Indeed, counsel for appellants in h......
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Brown v. Hunter
... ... court of equity had no jurisdiction to sell for partition. To ... the same effect is the case of Davis v. Bingham, 111 ... Ala. 292, 18 So. 660. Since these adjudications, the act of ... November 27, 1896 (Acts 1896-97, p. 17), was enacted, which ... ...