Dillard v. Alexander, 3 Div. 114

• Decision Date: 27 August 1964
• Docket Number: 3 Div. 114
• Citation: 277 Ala. 202,168 So.2d 233
• Parties: Elbert C. DILLARD v. Mary Ellen Dillard ALEXANDER et al.
• Court: Alabama Supreme Court

Page 233

168 So.2d 233

277 Ala. 202

Elbert C. DILLARD v. Mary Ellen Dillard ALEXANDER et al.

3 Div. 114.

Supreme Court of Alabama.

Aug. 27, 1964.

Rehearing Denied Nov. 5, 1964.

Gipson & Bridges, Prattville, Holley, Milner & Holley, Wetumpka, and Godbold, Bobbs & Copeland, Montgomery, for appellant.

Taylor & Newby, Prattville, for appellees.

SIMPSON, Justice.

Appeal by the respondent and cross-complainant from a decree of the Circuit Court of Autauga County, in Equity, wherein the court found that appellees and appellant were the joint owners of the subject real estate, each owning an undivided one-third interest subject to a mortgage, that the property could not be equitably divided or partitioned and that it be sold for division. The Register was directed to sell the real estate at public outcry for cash, after publication and to report after the sale. All questions relative to the distribution of the proceeds of the sale as pertaining to the respective shares of the owners, the amount due on a certain mortgage and attorney's fees and costs were reserved.

Appellant contends that he is the sole owner by adverse possession of the real estate in question; or that the record shows that the land could have been partitioned in kind and should not be sold for division; and assuming a sale proper then appellant should have been allotted the portions of said lands upon which he made major improvements and that the property should not be sold at public outcry as it would not produce maximum proceeds; and finally that the lower court committed reversible error in admission of oral testimony of appellant's offer contained in a letter to settle the lawsuit.

It appears from the evidence that J. W. Dillard died intestate in 1932, leaving surviving a widow, a son, and two daughters, the son and two daughters being parties to this lawsuit. Subsequently in 1941 the widow died. Therefore, the parties to this suit are tenants in common of the suit property, each deriving this claim from J. W. Dillard, unless appellant's claim of full title by adverse possession should prevail.

We now move to a consideration of each of appellant's contentions for a reversal.

While the evidence tended to show that appellant had been in exclusive possession of the suit property from approximately 1943, that appellant had by words and actions effected an ouster of the co-tenant appellees, that he had collected the rents and profits from the lands without an accounting to appellees, that he had made improvements on the land totaling some $11,000.00, had paid taxes on the suit property since the death of his father in 1933, with the exception of one year, the evidence was undisputed that the County Tax Assessor had since the death of J. W. Dillard assessed the taxes in the name of 'J. W. Dillard Estate' on the assessment sheets. Appellant is relying on the portion of Title 7, § 828, Code of Ala. 1940, as amended, where, in lieu of color of title, listing of taxation of the real estate in the proper county for ten years prior to the commencement of the suit is the basis of adverse possession. Appellant has failed to satisfy this requirement of adverse possession. While it is the duty of the County Tax Assessor to assess property listed by the person in possession and claiming ownership, it does not devolve upon the tax assessor to determine for himself the title to such property.--State ex rel. Matson v. Laurendine, 199 Ala. 312, 74 So. 370. And real estate cannot be assessed to a deceased owner of his estate. McGowin v. Felts, 263 Ala. 504, 83 So.2d 228; Hames v. Irwin, 253 Ala. 458, 45 So.2d 281; Webb v. Griffin, 243 Ala. 468, 10 So.2d 458. Appellant had a remedy to correct the failing of the Tax Assessor by mandamus (see Matson case, id.) but did not seek to do so. He acquiesced in the listing of taxes in the 'J. W. Dillard Estate', although he would have had a right to have the same assessed in his name if he had so requested.

This Court held in Jones v. Mitchell, 258 Ala. 651, 64 So.2d 816 that the listing of the land for taxation serves two purposes: first, to satisfy § 828, Title 7, supra; second, to be evidence of a claim of ownership and the extent of the possession.

To accede to a contrary rule would be to judicially abrogate the plain meaning of the statute (§ 828, Title 7) which this Court is not constrained to do. We, therefore, affirm the holding below that appellant did not own the full title to the property by adverse possession. Having so disposed of appellant's claim to the suit property by adverse possession, we move to a consideration of the other alleged errors occurring in the trial below.

Appellant strenuously argues that a sale for division should not have been ordered and that the land can be equitably divided in kind, without materially impairing its value and without prejudice to the rights of the appellees. Under our law...