Foshee v. Foshee

• Decision Date: 30 June 1965
• Docket Number: 5 Div. 786
• Citation: 177 So.2d 99,278 Ala. 205
• Parties: Sue Snow FOSHEE et al. v. Worth FOSHEE et al.
• Court: Alabama Supreme Court

Page 99

177 So.2d 99

278 Ala. 205

Sue Snow FOSHEE et al. v. Worth FOSHEE et al.

5 Div. 786.

Supreme Court of Alabama.

June 30, 1965.

Omar L. Reynolds and Reynolds & Reynolds, Clanton, for appellants.

Alvin B. Foshee, Clanton, for appellees.

LIVINGSTON, Chief Justice.

This is the second appeal in this case. See Foshee v. Foshee, 273 Ala. 539, 143 So.2d 301. There, this Court sustained the equity of the bill of complaint. The substance of the case made by the bill of complaint is there stated and we see no point in repeating the allegations here. After affirmance, the case was tried in the lower court on evidence taken ore tenus before the trial judge who decided the issues in favor of the complainants in the court below. This appeal followed.

On former appeal, this Court stated:

'Assuming, without deciding, that the jurisdiction of a court of equity cannot be invoked for the purpose of resolving a dispute between tenants in common of a burial lot as to the kind of gravemarker to be placed thereon initially, such principle would not be controlling here. The basic purpose of the bill is to have the old monuments placed back on the graves just as they were for many years with the acquiescence of the next of kin--in other words, to restore the graves to the condition they were in for more than 45 years. Our view is that the particular circumstances of this case give equity to the bill. * * *'

Suffice it to say, that the evidence heard by the trial court was ample to sustain the decree rendered in the court below. We will, therefore, proceed to the questions of law presented by this appeal.

It seems to be admitted that after the death of Mrs. Adeline Smitherman Foshee about the year 1911, Hill J. Foshee and Calhoun Foshee, Sr., were tenants in common of the cemetery plot which descended to their heirs at law, the complainants and respondents (except Long). The contention seems to be that the respondents acquired sole ownership of said cemetery plot by adverse possession and by abandonment.

The record contains 10 assignments of error and 6 cross-assignments of error.

Hill J. Foshee died in 1951 and is not buried in the lot in question. Calhoun Foshee died in 1958 and is buried in the lot in question.

It is axiomatic that the possession of one tenant in common is the possession of all. Larkin v. Haralson, 189 Ala. 147, 66 So. 459; Livingston v. Livingston et al., Alexander et al. v. Livingston, 210 Ala. 420, 98 So. 281; and a possession of one tenant in common is presumed to be for the benefit of all. Markstein v. Schilleci, 258 Ala. 68, 61 So.2d 75. The possession of a tenant in common exercising customary acts of ownership does not alone operate as disseisin of cotenant, but there must be positive information of facts, however informally communicated or acquired. Ratliff v. Ratliff, 234 Ala. 320, 175 So. 259. Before a tenant in common can rely on his ouster of his cotenant, he must claim entire title to the land, must hold exclusive adverse possession against every other person, and repudiate relation of cotenancy. Tarver v. Tarver, 258 Ala. 683, 65 So.2d 148. The possession of one tenant in common is prima facie presumed to be the possession of all, and it does not become adverse to the cotenants unless they are actually ousted, or, short of this, unless the adverse character of the possession of one is actually known to the others, or the possession of one is so open and notorious in its hostility and exclusiveness as to put the other tenants on notice of its adverse character. Bailey v. Bond, 237 Ala. 59, 185 So. 411; Ashford v. Ashford, 136 Ala. 631, 34 So. 10, 13, 96 Am.St.Rep. 82; Winsett v. Winsett, 203 Ala. 373, 83 So. 117; Gilb v. O'Neill, 225 Ala. 92, 142 So. 397, 85 A.L.R. 1526; Elsheimer v. Parker Bank & Trust Co., 237 Ala. 24, 185 So. 385; Palmer v. Sims, 176 Ala. 59, 57 So. 704; Swafford v. Brasher, 246 Ala. 636, 22 So.2d 24.

The decree of the trial court was to the effect that the evidence was insufficient to show adverse possession on the part of the respondents, and that there was insufficient evidence to show abandonment by the complainants.

In general, where a tenant in common commits such waste or does other acts that amount to a destruction of the common property or that will result in its permanent injury, a cotenant is entitled to injunctive relief. 7 R.C.L., p. 904, Sec. 104; Jasper Land Co. v. Manchester Sawmills, 209 Ala. 446, 96...