Dew v. Garner

• Decision Date: 20 April 1922
• Docket Number: 2 Div. 763.
• Citation: 92 So. 647,207 Ala. 353
• Parties: DEW v. GARNER.
• Court: Alabama Supreme Court

92 So. 647

207 Ala. 353

DEW v. GARNER.

2 Div. 763.

Supreme Court of Alabama

April 20, 1922

Appeal from Circuit Court, Hale County; B. M. Miller, Judge.

Bill by Ellen Garner against Wilson Childress, E. R. Dew, and another to sell land for division among joint owners. From a decree granting the relief prayed for the respondent E. R. Dew appeals. Reversed and rendered.

R. B Evins, of Greensboro, for appellant.

Thomas E. Knight, of Greensboro, for appellee.

GARDNER J.

The statement of the case will contain a sufficient outline for a proper understanding of the question here presented.

Appellant, Dew, defended this bill for sale for division upon the theory that he was not a tenant in common with the other parties to the cause, but owned the land in severalty, and had acquired a perfect title thereto by adverse possession under color of title. The mortgage from Celeste Childress one of the heirs of Pollard Childress, and Robert Cox executed in 1901 to this appellant, purported to convey the entire interest and fee-simple title in and to the land. They were in possession, and the evidence was without dispute they claimed to own the same. The mortgage was duly foreclosed and the deeds evidencing the transaction were recorded in 1906, and since the date of the execution of these deeds the evidence is without dispute that appellant has been in the continuous, open, adverse possession of the land, claiming the same as his own, and without any recognition of the rights of any one else thereto.

The principle of law controlling the case under these circumstances is found stated in Riggs v. Fuller, 54 Ala. 141, where the court, speaking to an analogous situation, said:

"The grantor was one of the heirs to whom the lands had descended. A sale and conveyance by him of the entire fee to a stranger, who takes possession claiming the exclusive title, operates a disseisin of the other heirs, and converts the possession, of the stranger into an adverse possession which, if continued the length of time prescribed by the statute of limitations, will bar the entry of the other heirs."

The holding of this court in the Riggs Case, supra, is supported by the overwhelming weight of authority. Mr. Freeman in his note to the case of Joyce v. Dyer, 109 Am. St. Rep. 603, says:

"There is little, if any, dissent from the proposition that where a cotenant conveys to a stranger to the title by a conveyance appropriate in form to transfer an estate in severalty, and the grantee enters into exclusive possession of the property thereunder as a claimant in severalty, this in an ouster of the other cotenants, of which they must take notice, and which, if sufficiently long continued, bars them of all right to the property."

The author's note then cites numerous decisions, among them Fielder v. Childs, 73 Ala. 567. See, also, 2 Corpus Juris 185.

The court below evidently proceeded upon the theory that appellant by the execution of the mortgage and foreclosure deeds had become a tenant in common with the cotenants of Celeste Childress, and that the evidence was insufficient to show an ouster of his joint owners. Miller v. Vizzard Inv. Co., 195 Ala. 467, 70 So. 639. But this...