Frank v. Johnson

• Decision Date: 07 October 1954
• Docket Number: 5 Div. 560
• Citation: Frank v. Johnson, 261 Ala. 642, 75 So.2d 153 (Ala. 1954)
• Parties: Joe FRANK v. Mamie Lee JOHNSON et al.
• Court: Alabama Supreme Court

Page 153

75 So.2d 153

261 Ala. 642

Joe FRANK v.Mamie Lee JOHNSON et al.

5 Div. 560.

Supreme Court of Alabama.

Oct. 7, 1954.

Rehearing Denied Nov. 4, 1954.

Harry D. Raymon and Russell & Russell, Tuskegee, for appellant.

Wm. C. Hare and Powell & Powell, Tuskegee, for appellees.

CLAYTON, Justice.

This appeal by Joe Frank, respondent below, is from a decree of partition whereby he was awarded 36 1/4 acres of land, in fee, same being one-half of the acreage decreed as jointly owned by complainants and respondent, his interest having been found by the trial court to have been an undivided one-half interest in 72 1/2 acres.There was no doubt of his ownership of an undivided one-half interest, but he claimed complete title in 72 1/2 acres by adverse possession.

It was agreed by stipulation in the record that Sam Johnson died in 1903 or 1904 owning 75 acres of land which he acquired by deed in 1878 from Adeline Roberts; that Wesley Johnson and Jack Johnson were the sons and only surviving heirs of Sam Johnson, and they inherited the property involved in this suit; and that complainants are the lawful heirs of Jack Johnson.

The chronology of transactions affecting the lands, so far as the evidence shows, is as follows: That Sam Johnson executed mortgages on the lands (75 acres) to Miss Issie Stevens each year from 1898 to 1903 inclusive; that Wesley Johnson and Jack Johnson, on March 1, 1904, gave separate mortgages to Miss Issie Stevens in which they each separately conveyed 'my interest in the land of Sam Johnson, deceased, and described particularly in a mortgage held by Miss Issie Stevens against Sam Johnson'.Later in the same year of 1904, on May 11th, Jack Johnson and Wesley Johnson and wife executed a joint mortgage to the same mortgagee for the exact total of the said individual mortgages plus $50, and the separately executed mortgages were satisfied.In this joint mortgage, the property is described as 'the south part of east half of section 2, township 15, range 22.About 75 acres more or less situated in Beat 6, Macon County, Alabama.'

Jack Johnson executed individual mortgages to Miss Issie Stevens conveying his one-half interest in the lands of Sam Johnson in 1905 by which he describes the lands by reference to the 1904 mortgage, and in 1906 and 1907, in which the land is described by numbers, the same as in the 1904 mortgage of Sam Johnson.Wesley Johnson and wife executed mortgages to the same mortgagee in 1907 and 1908, conveying 'my interest in about 75 acres in southern part of eastern half of section 2, township 15, range 22.'

In 1909 and 1910, Wesley Johnson executed mortgages to the same mortgagee conveying '72 acres in the southwest quarter of section 2, township 15, range 22, being known as the Sam Johnson lands.'

In 1913, he executed a mortgage to the same mortgagee conveying '75 acres in the southeast quarter of section 2, township 15, range 22, situated in Macon County, Alabama.'

In 1914, 1915, 1916, and 1921, Wesley Johnson and wife executed mortgages to Thomas Edwards, conveying '75 acres in southeast quarter of section 2, township 15, range 22, bounded as follows: On the north by plantation known as Matt Boyd place now owned by B. M. Carr, on the east by land of Judge S. T. Frazier and Wash Wood, on south by the Henry Cloud Place, on west by place now owned by Mose Green.But the following parcel of land is excepted from the above, to-wit: 2 1/2 acres in the corner of the LaPlace and Cotton Valley Road and the LaPlace and Hardaway Road, said 2 and 1/2 acres being in the said southeast quarter of said section 2, township 15, range 22.'

In 1924, Wesley Johnson and Jack Johnson jointly executed to Thomas Edwards a mortgage on '2 1/2 acres in the corner of the LaPlace and Cotton Valley Road and the Laplace and Hardaway Road in southeast quarter of section 2, township 15, range 22.'

No foreclosure deed was introduced on the trial but G. M. Edwards and W. M. Russell, attorney, testified that the 1921 mortgage of Wesley Johnson to Thomas Edwards was foreclosed somewhere around 1935 or 1936, and the 72 1/2 acres was bought at foreclosure sale by the First National Bank of Union Springs which conveyed it to appellant in 1938.After its purchase of the property at the foreclosure sale, the First National Bank of Union Springs on June 29, 1937, filed a suit against Wesley Johnson, et al., to quiet title to the 72 1/2 acres.Jack Johnson was not made party-respondent to that suit but he filed an answer and cross-bill on June 24, 1939, claiming his undivided one-half interest in the land and challenged the right or title of the First National Bank of Union Springs to any interest therein.After fourteen continuances, that case was dismissed in 1945.There is testimony that Wesley Johnson remained on the land after the foreclosure until he was put off, but the manner and time are not stated.

It was admitted by all parties that the 2 1/2 acres in the forks of the road was owned by Jack Johnson and that it is now owned by complainants.

Appellant's claim to the 72 1/2 acres, in one aspect, is based on the following theory that he undertook to prove without direct evidence to support.Jack Johnson and Wesley Johnson had a division of the 75 acres whereby Jack took 2 1/2 acres in the forks of the road and Wesley Johnson took the other 72 1/2 acres which are here involved.The exact time of this alleged division is not shown, and no dates or written memoranda thereof were shown to have been made.The county tax collector testified that the lands (75 acres) were assessed to Wesley Johnson since 1904 and until 1935 or 1936; that sometime about 1935 or 1936, 2 1/2 acres were assessed to Jack Johnson and 72 1/2 acres went to the First National Bank of Union Springs.

Oral testimony from Dave Pearson was to the effect that Jack had told him he had sold out to 'Wes.'Dave said this was in 1912.

A purported quit-claim deed from Jack Johnson to Miss Issie Stevens was offered in evidence by respondent.It was dated December 21, 1908, and for a consideration of $208.69 quit-claimed to grantee the following: '35 acres lying in northwest corner of section 2, township 15, range 22.These lands being a part of the Roberts Place and known as the Sam Johnson Place'.No evidence was offered to show that this instrument was ever recorded.It was admitted that the tax records of Macon County did not show any lands in section 2 ever assessed to Miss Issie Stevens, nor was there any deed from Miss Issie Stevens to respondent or his prodecessors in title.The only transaction between any of them having been the transfer to Thomas Edwards by the administratrix of the estate of Miss Issie Stevens of the 1913 mortgage.Several witnesses testified that Sam Johnson never owned any land in this vicinity other than the 75 acres described in the bill of complaint.The trial court in its decree held that this deed was not competent evidence.In this he was correct.Appellant offered no evidence that he held title under this deed or the grantee therein in any way.For this reason we forego discussion of the possible conflicting descriptions in the deed and the possibility that the lands involved in the present suit were intended to have been conveyed thereby.G. M. Edwards did testify that when his father, Thomas Edwards began doing business with Wesley Johnson, 'he took up' a mortgage from Miss Issie Stevens which was executed by Wesley Johnson in 1913; that it was endorsed, transferred to Thomas Edwards by Mrs. J. S. Daniel, as administratrix, but there is no connection shown between this mortgage and the purported deed.

The trial court in its decree in the case at bar, found that Jack Johnson had at no time executed any conveyance of his interest in the property to anyone, although it was apparent that Wesley Johnson exercised control over it.It found further that Jack Johnson did, by filing certain writings in court on one or more occasions, give notice to the world that he did claim an interest in the property.The evidence was undisputed that of the two brothers, Wesley was the dominant character and Jack was his inferior referred to in the testimony as a 'lame duck'.

Respondent, in his cross-bill, sought alternatively:

1.That the bill of complaint be dismissed.

2.That respondent be decreed to have complete title to the 72 1/2 acres by adverse possession for over ten years.

3.That the deed from Jack Johnson to Miss Issie Stevens be reformed to convey his interest in the lands, the subject of this suit.

4.That respondent be awarded his share of the lands in kind which would include that portion upon which he had placed improvements.

It is to be noted that neither the estate of Miss Issie Stevens nor the heirs of Miss Issie Stevens are parties to the instant suit.

The court had a surveyor to divide the 72 1/2 acres into two tracts equal in area and by its decree vested in respondent complete title to the tract upon which the respondent had erected two houses and other improvements.There was testimony that the land was all of the same kind and value except for improvements erected thereon by respondent, the old houses having about fallen down and respondent having built two new ones.Thus the relief decreed by the court was that prayed for in the 4th alternative prayer of respondent's cross-bill.This is assigned by appellant as error for the reason that complainant's original bill contained no general prayer but only a specific prayer for a sale of the property for division of the proceeds of sale, and respondent's cross-bill was stricken by the court because filed after testimony taken and the cause submitted for decree.

It is true that this court, in the early case of Driver v. Fortner, 5 Port. 9, 26, held:

'The prayer of a bill is deemed an essential part of it and if it want it, no decree can be rendered in favor of the complainant.

'Bills usually seek both specific and general relief, viz:...