Dennison v. Claiborne

• Citation: 289 Ala. 69,265 So.2d 853
• Decision Date: 10 August 1972
• Docket Number: 1 Div. 720
• Parties: Robert DENNISON et al. v. William C. CLAIBORNE, Jr., also known as William C. Clairborne, Jr.
• Court: Supreme Court of Alabama

Page 853

265 So.2d 853

289 Ala. 69

Robert DENNISON et al. v. William C. CLAIBORNE, Jr., also known as William C. Clairborne, Jr.

1 Div. 720.

Supreme Court of Alabama.

Aug. 10, 1972.

Benjamin H. Kilborn, Mobile, for appellants.

James E. Moore, Mobile, for appellee.

BLOODWORTH, Justice.

This is an in rem proceeding brought to quiet title to a tract of land pursuant to Title 7, § 1116, Code of Alabama 1940, as amended. From a final decree of the circuit court of Mobile County, in equity, quieting the title in respondent, complainants appeal.

The bill of complaint was filed by Robert Dennison and his four sisters, Ada Dennison, Equilla Amy Dennison, Mary Dennison and Mable Dennison. The bill alleges: that complainants 'are now in the actual, peaceable possession of said land and that they and those through whom they claim have been in the actual peaceable possession of said land for more than fifty years,' and 'have regularly assessed and paid taxes on said property for more than twenty years'; and, that 'the only possible claimant to said parcel of land, or any part thereof, other than Complainants, is the Respondent William Claiborne, Jr.' The bill prays that Claiborne and 'any and all unknown persons claiming or reputed to claim any title to, interest in, lien or encumbrance on said property' be made respondents and that the trial court decree complainants to be 'the owners in fee simple absolute of the land described.'

Respondent Claiborne filed an answer and cross-bill denying that complainants are in actual peaceable possession and alleging 'that it was not until approximately four (4) years ago that the Complainants took possession of said property forcibly placing a fence around the said lot to keep the Respondent from entering thereon'; that, until such time as respondent was ousted from peaceable possession in 1965, 'he and his predecessors in title had been in peaceable possession of the property ever since 1902'; that 'he and his predecessors in title have assessed and paid taxes on said property for more than twenty (20) years' and 'he has also continued to * * * pay the taxes thereon in spite of the claim' of the complainants. Respondent prayed that he be decreed to be the owner of the land in fee simple, and that the complainants be decreed to have no right, title or interest therein.

The trial court entered a final decree denying complainants the relief sought in their bill of complaint and granting respondent the relief prayed for in his cross-bill. The court held that 'the Respondent William C. Claiborne, Jr., is the owner in fee simple absolute of that certain real property involved in this litigation * * * and that the Complainants * * * have no interest or legal claim in said property whatsoever, and further that the title to said land be and hereby is vested and quieted in the Respondent * * * against the Complainants and all unknown claimants whomsoever * * *.'

Complainants appeal from this decree.

The first question presented is whether the trial court erred in denying complainants the relief they prayed for because complainants had established no interest or legal claim to the property. If that holding does not constitute reversible error (which we have concluded to be the case) then, the next question is whether the court erred, under the pleadings and the evidence, in granting to respondent the relief for which he prayed. Our view is that the trial court did err in this ruling.

Complainants contend that the court should have quieted title in them because, they say, the evidence shows they have adversely possessed the property under color of title for the statutory period.

When one is claiming title to land by adverse possession, this court has said he has,

'* * * the burden of showing actual, clear, definite, positive, notorious, open, continuous, adverse and exclusive possession of a definite tract under a claim of right for the time prescribed by law, and such possession is required to be shown by clear and convincing evidence. Turnipseed v. Moseley, 248 Ala. 340, 27 So.2d 483, 170 A.L.R. 882; Walthall v. Yohn, 252 Ala. 262, 40 So.2d 705.' Prestwood v. Hunt, 285 Ala. 525, 234 So.2d 545 (1970).

The testimony in this case was taken ore tenus before the trial judge. He saw and heard the witnesses as they testified. He observed their demeanor on the stand. He personally viewed the subject property.

It is almost platitudinous to restate our well established rule that,

'Where evidence is heard orally before the trial court, the finding of the court has the effect of a jury's verdict and will not be disturbed on appeal, unless plainly erroneous, whether in law or equity. And we must affirm the trial court's decree, if fairly supported by credible evidence under any reasonable aspect regardless of what might be our view of the evidence. Norton v. Norton, 280 Ala. 307, 193 So.2d 750; Great American Ins. Co. v. Railroad Furniture Salvage of Mobile, Inc., 276 Ala. 394, 162 So.2d 488; Dunlavy v. Dunlavy, 283 Ala. 303, 216 So.2d 281.' Patterson v. Brooks, 285 Ala. 349, 232 So.2d 598 (1970).

'* * * the findings and conclusions of fact made by a trial court, based on testimony taken ore tenus, are presumed to be correct, and such findings and conclusions carry with them the force of a jury verdict. Unless such findings and conclusions are plainly wrong or without supporting evidence, or are manifestly unjust * * * the final decree is due to be affirmed. Renfroe v. Weaver, 285 Ala. 1, 228 So.2d 764, and cases there cited.

'Moreover, as already noted, the trial court, with the consent of the parties, personally inspected the premises before making its findings of fact, and, hence, there is this additional reason why the decree here is reviewed as if it were a verdict of a jury. Miles v. Moore, 262 Ala. 441, 79 So.2d 432; McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160; Crawford v. Tucker, 258 Ala. 658, 64 So.2d 411.' Pardue v. Citizens Bank & Trust Company, 287 Ala. 50, 61--62, 247 So.2d 368, 378 (1971).

We have carefully considered the evidence in the light of complainants' burden of proof and the presumptions which must be indulged in favor of the trial court's decree. There is substantial conflict in the evidence with regard to the various possessory acts claimed by complainants, and we cannot say that the findings and conclusions of fact made by the trial court are plainly wrong or without supporting evidence, or are manifestly unjust. The decree is fairly supported by credible evidence and, therefore, we must affirm regardless of what might be our view of the evidence.

We now come to the second question presented by this appeal: whether the trial court erred in quieting title in respondent on his cross-bill.

Complainants insist that they were in possession of the property at the time the bill was filed. They contend that, by the specific provisions of Title 7, § 1116, supra, title to the land may not be quieted in one out of possession when another party is in possession. We think complainants are correct in this contention.

Title 7, § 1116, provides, as follows:

' § 1116. When bill may be filed.--When any person, natural or artificial, claims either in his own right or in any representative capacity whatsoever, to own any lands or any interest therein, and is in the actual, peaceable possession of the land, or if neither he nor any other person is in the actual possession of the lands, and he holds and has held color or title to the lands, or interest so claimed, for a period of ten or more consecutive years next preceding, and has paid taxes on the lands or interest during the whole of such period, or if he, together with those through whom he claims, have held color of title, and paid taxes on the land or interest so claimed during the whole of such period of time, or if he and those through whom he claims have paid taxes during the whole of such period of ten years on the lands or interest claimed, and no other person has paid taxes thereon during any part of said period, he may, if no suit is pending to test his title to, interest in, or his right to the possession of such lands, file a verified bill of complaint in the circuit court in equity of the county in which such lands lie, against said lands and any and all persons claiming or reputed to claim any title to, interest in, lien or encumbrance on said lands, or any part thereof, to establish the right or title to such lands, or interest, and to clear up all doubts or disputes concerning the same.'

In Fitts v. Alexander, 277 Ala. 372, 375, 170 So.2d 808, 810 (1965), this court construed Title 7, § 1116 (per Lawson, J.), viz:

'Under the provisions of § 1116, Title 7, Code 1940, as amended, one who claims to own lands or any interest therein, if no suit is pending to test his title to, interest in, or his right to the possession of the lands, may file a verified bill of complaint in the circuit court, in equity, of the county in which such lands lie, against the lands and any and all persons claiming or reputed to claim any title to, interest in, lien or encumbrance on said lands, or any part thereof, to establish the right or title to such lands, or interest, and to clear up all doubts or disputes concerning the same, when either of the following situations is shown to exist:

'1. When the complainant is in the actual, peaceable possession of the lands.

'2. When neither the complainant nor any other person is in the actual possession of the lands and complainant has held color of title to the lands, or interest so claimed, for a period of ten or more consecutive years next preceding the filing of the bill, and has paid taxes on the lands or interest during the whole of such period.

'3. When neither the complainant nor any other person is in the actual possession of the lands and complainant, together with those through whom he claims, have held color of title and paid taxes on the lands or interest so claimed for...