Fudge v. County Bd. of Ed. of Wilcox County

• Decision Date: 14 September 1961
• Docket Number: 2 Div. 400
• Parties: Walter FUDGE et ux. v. COUNTY BOARD OF EDUCATION of WILCOX COUNTY.
• Court: Alabama Supreme Court

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.

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 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 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 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 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 Executive Officer. The lease in evidence is dated October 3, 1949. Later, in 1951, negotiations were had with a view to cancellation of the lease and the execution of a deed by Dr. Fudge to complainant. Apparently Dr. Fudge and his wife did execute a deed which was delivered to complainant. There is testimony, uncertain in some respects, that the deed and lease were later returned to Dr. Fudge, and then returned by him to complainant. Eventually, after protests by citizens of the Lamison community, complainant authorized the bringing of the instant suit.

Respondents insist that the decree is in error for three reasons. First, they argue that complainant is estopped to deny the title of respondents 'because of the relationship of Landlord and Tenant that had existed between the Complainant and the Respondent since October 3, 1949.'

'The rule is well settled, and is not questioned, that a tenant can not dispute the title of his landlord, nor set up a paramount title in himself, or in a stranger, to defeat any action the landlord may institute for the recovery of rent, or, when the term has expired, to regain possession of the premises. There are various exceptions to, and qualifications of the rule, which are of as much importance as the rule itself, and which must be observed in the administration of justice between landlord and tenant. A plain mistake of facts constitutes one of the exceptions. The tenant may show that he attorney to the landlord, or accepted a lease from him, under mistake, and in ignorance of the true state of the title, and that the title was in himself, or out of the lessor.--2 Greenl.Ev. § 305; 2 Smith's Lead. Cases, 752; Taylor on Land. & Tenant, §§ 707-8. Fraud, or imposition, or undue advantage, the same authorities show, is another exception to the rule: whenever, by the fraud, or misrepresentation of the lessor, the lessee is induced to accept the lease, he may impeach the title of the lessor.' Farris & McCurdy v. Houston, 74 Ala. 162, 167, 168.

See also: Shelton v. Carrol, 16 Ala. 148; Cain v. Gimon, 36 Ala. 168; Blankenship v. Blackwell, 124 Ala. 355, 27 So. 551; Irwin v. Coleman, 173 Ala. 175, 55 So. 492; Bank of New Brockton v. Dunnavant, 204 Ala. 636, 87 So. 105; Jones v. White, 230 Ala. 144, 160 So. 239; Stephens v. Stark, 232 Ala. 485, 168 So. 873; 2 A.L.R. 359.

The qualification of the general rule applies here. At the date of the lease, ...