Fudge v. County Bd. of Ed. of Wilcox County, 2 Div. 400

• Court: Supreme Court of Alabama
• Writing for the Court: COLEMAN; LIVINGSTON
• Citation: 272 Ala. 521,133 So.2d 38
• Parties: Walter FUDGE et ux. v. COUNTY BOARD OF EDUCATION of WILCOX COUNTY.
• Docket Number: 2 Div. 400
• Decision Date: 14 September 1961

Page 38

133 So.2d 38 272 Ala. 521 Walter FUDGE et ux.
v.
COUNTY BOARD OF EDUCATION of WILCOX COUNTY. 2 Div. 400. Supreme Court of Alabama. Sept. 14, 1961.

[272 Ala. 522] Pitts & Pitts and Cecil C. Jackson, Jr., Selma, for appellants.

Craig, Hobbs & Hain, Selma, for appellee.

COLEMAN, Justice.

This is an appeal by respondents from a final decree which quieted the title of complainant

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to the land in controversy. Complainant is the County Board of Education of Wilcox County. Respondents are Dr. Walter Fudge and his wife.

This land consists of approximately two acres at Lamison in Wilcox County. It is bounded on the east by Alabama State Highway No. 5, on the north by the dwelling place of respondents, and on the south by the dwelling place of one Hunter Dunaway who is sometimes referred to as H. L. Dunaway. The ownership of the land on the west is not altogether clear but appears to be in the respondent, Dr. Fudge. The land in suit is described as two adjoining lots, each of which contains approximately [272 Ala. 523] one acre and each of which is shown as a four-sided figure on the map or plat. The lot on the west is shown as equilateral and is designated 'School Lot Proper.' The school building is located on this west lot. The lot on the east, which borders on the highway, is designated 'Intervening School Lot.' Respondents insist on a distinction between the two lots with respect to use and title. Complainant says the difference in designation is made only to facilitate description. There are photographs of the lots in evidence. We have carefully examined these photographs together with the other evidence and are not able to distinguish any dividing line between the two lots on the ground.

The claim of complainant is founded on prescription. The claim of respondents is based on an alleged paper title plus recognition of that title by complainant as a tenant.

The trial court heard testimony ore tenus and rendered a decree declaring that complainant owns in fee simple and that respondents have no right, title, or interest in the land. Respondents assign rendition of the decree as error. We are of opinion that the decree is not erroneous.

The evidence is without conflict in certain respects but is contradictory others. The parties stipulated that H. Dunaway, known also as Howard Dunaway, owned the land in suit in fee simple on and prior to December 26, 1907. The respondent, Dr. Fudge, claims to hold the record title by a chain of conveyances from Howard Dunaway who conveyed to Claudius Dunaway in 1908. Claudius Dunaway conveyed to J. L. Moore in 1912. J. L. Moore conveyed to Miller & Company, Inc., a corporation, in 1946, and that corporation conveyed to the respondent, Dr. Fudge, by quitclaim deed dated September 14, 1949. Dr. Fudge has also three later deeds to him from Miller & Company, Inc., dated, respectively, November 28, 1949, February 12, 1951, and May 11, 1954. The two latest deeds recite that they are made to correct earlier deeds. The several deeds in the chain from Howard Dunaway to Miller & Company, Inc., are conveyances of a larger tract purporting, as respondents insist, to include the two acres in suit. There are a number of exceptions in the respective descriptions. Complainant makes some point that the descriptions do not convey the two acres here involved, and it is certainly not entirely clear to us whether the two acres are included in or excepted from the descriptions. In view of the fact, however, that our decision does not turn on that point, we pretermit determination of the sufficiency of the descriptions and, for the purposes of this decision, assume that the two acres are included in the conveyances to Miller & Company, Inc.

Dr. Fudge has also two quitclaim deeds from Claude Dunaway, the same person as Claudius Dunaway, supra, one dated September 12, 1949, and the other dated January 27, 1951. The later deed recites that it is a correction deed. Both deeds, as we understand them, convey the same one acre of land, to wit, School Lot Proper.

We understand that both Howard and Claudius Dunaway had died before the trial of this case.

We are of opinion that the evidence supports a finding that complainant, the County Board of Education of Wilcox County, and its predecessor in title, the trustees of the school district, have had

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actual, peaceable possession of the two acres in suit from some undetermined day in 1907 until the bill of complaint was filed in this suit on May 21, 1956; that complainant's possession as aforesaid continued until the trial of this cause; and that neither the right to possession or title of complainant, or its predecessor, was ever questioned from 1907 until 1949 when Dr. Fudge advanced his claim to the land.

Dr. Fudge testified that the first room of the schoolhouse was built in 1907. It appears that additions were added later and that the front was turned from north to east so as to face the highway. A school was operated in the building each year, by [272 Ala. 524] complainant or its predecessor, from 1907 until the close of the school year in the Spring of 1957 after this suit was begun. No school has been operated there since 1957.

No conveyance of the land in suit to trustees or to the complainant, prior to a deed from Dr. Fudge after 1949, is shown. There are references in the testimony which tend to show that a deed of some sort was executed by Howard Dunaway to the trustees, dated December 26, 1907, but, as we view it, this testimony will not suffice to support a finding that such a deed was ever delivered or what its recitals were.

Some time after the date of the first quitclaim deed from Miller & Company, Inc., dated September 14, 1949, and from Claude Dunaway, dated September 12, 1949, Dr. Fudge negotiated with complainant regarding execution of a lease of School Lot Proper by Dr. Fudge as lessor to complainant as lessee. Complainant agreed to accept the lease and it was executed on behalf of complainant by its...