Grayson v. Muckleroy

• Decision Date: 06 June 1929
• Docket Number: 6 Div. 266.
• Citation: 220 Ala. 182,124 So. 217
• Parties: GRAYSON v. MUCKLEROY.
• Court: Alabama Supreme Court

124 So. 217

220 Ala. 182

GRAYSON v. MUCKLEROY.

6 Div. 266.

Supreme Court of Alabama

June 6, 1929

Rehearing Granted June 27, 1929.

Further Rehearing Denied Oct. 31, 1929.

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action of ejectment by Rosalind H. Grayson against W. C. Muckleroy. From a judgment for defendant, plaintiff appeals. Affirmed.

Rudulph & Smith and Stokely, Scrivner, Dominick & Smith, all of Birmingham, for appellant.

Altman & Koenig, of Birmingham, for appellee.

BROWN J.

This is a statutory action in the nature of an action of ejectment brought by the appellant on June 8, 1927, against appellee to recover possession of certain lots, numbered from 1 to 12 inclusive, in block 47, and lots numbered from 1 to 14 inclusive, in block 44, as designated on the survey of South Birmingham Land Company, recorded in Map Book 3, page 83, in the office of the judge of probate of Jefferson county, Alabama. The complaint consisting of a single count is in statutory form, and the plea was not guilty, pleaded in short by consent, with leave, etc.

The evidence is without dispute that the lots described in the complaint were a part of a tract of eight acres of land conveyed by John Jackson and his wife, Mollie, by deed executed on the 24th day of October, 1887, to "M. T. Sumner, trustee," and at the time of this conveyance the grantors therein were in possession of the property. The plaintiff's evidence shows a complete paper title from Sumner, through Henry L. Badham, unto H. H. Goldstein, who returned the property for taxes for the years 1914 and 1915; but, failing to pay the taxes, the property was sold, plaintiff purchasing at the sale, and, after the lapse of the period allowed for redemption, received a tax deed thereto. The regularity of the tax sale proceedings is not questioned.

In addition to the foregoing, the plaintiff offered a duly authentical transcript of the record and proceedings in the chancery court of Jefferson county in the case of Mollie Jackson v. Henry L. Badham, being a proceeding under the statute to quiet title, on a bill filed by the said Mollie Jackson, alleging that the complainant owned and was in the actual possession of a certain specifically described tract of land, located in the northeast quarter of the northeast quarter of section 13, township 18, range 3 west, in Jefferson county, Alabama, containing 10 acres, more or less, and that Badham claimed to own said land, or a part thereof, or to have some interest in the same, and averring, in substance, that he had no title or valid claim thereto, and calling upon him to set forth and specifically avow his right, title, or claim to the property. This bill was filed on the 3d day of October, 1902. On December 18, 1902, Badham answered, denying the complainant's possession and ownership of the property, and avowed ownership and title in himself, in and to blocks 44, 46, and 47, according to the survey of the Clifton Land Company, on record in B. L. page 139, of the records of Jefferson county, and alleging that said blocks were included in and a part of the lands described in the bill, and claiming title through the deed made by John Jackson and wife to M. T. Sumner, trustee, and intermediate conveyance through the Berney National Bank, who purchased at a mortgage foreclosure sale. On June 18, 1907, the answer was amended so as to limit the defendant's claim to so much of the lands as was embraced in blocks 44, 45, 46, and 47, in effect, as the evidence now shows, disclaiming ownership of 2 acres, a part of the 10-acre tract, not conveyed by Jackson and wife to Sumner, trustee-only 8 acres of the 10 being so conveyed.

On July 9, 1907, the chancery court entered a final decree in said case, settling and quieting the title of the complainant, Mollie Jackson, to the 2 acres, and adjudging the defendant, Badham, to be the owner in fee simple of the lands described in his amended answer. This decree was affirmed on appeal May 13, 1909. Jackson v. Badham, 162 Ala. 484, 50 So. 131.

The defendant, claiming under Mollie Jackson, who was his mother, offered evidence going to show, after she joined in the deed to Sumner, her husband having abandoned her, she continued in the actual possession of the property, claiming to own it, until her death in the year 1919; that defendant, claiming under her by inheritance, succeeded to her possession, and has continued in the actual, open, adverse possession of the property up to the filing of this suit, covering the period between 1889 to June 8, 1927, and during all of this time the property in suit was inclosed by a fence maintained by Mrs. Jackson and the defendant, who made use of the property for cultivation, pasture, orchards, and the sale of timber and gravel therefrom.

Neither Mollie Jackson nor defendant had color of title, nor did they list the property for taxes or pay the taxes thereon. Nor did they, or either of them, file a declaration of adverse possession as required by the Act of February 11, 1893 (Acts 1893, p. 478), subsequently incorporated in the Code of 1896 as sections 1541, 1542. In addition to the failure of defendant and his mother to assess and pay the taxes on the property, on cross-examination of the witness offered by defendant to show continuous adverse possession, other facts were developed tending to rebut the bona fides of the defendant's claim of ownership.

The trial court, by charges given at the insistence of the plaintiff, instructed the jury, and correctly so, that defendant could not defeat the plaintiff's right to recover, on showing possession for 10 years; this for the reason that he had failed to show either color of title, the filing of a declaration of adverse possession, as required by the statute of 1896 (sections 1541, 1542), or the listing of the land for taxes, for a period of 10 years next before the commencement of this action. Code 1923, § 6069.

This left for determination the single question of whether or not the possession of the defendant and Mollie Jackson, under whom he claimed, had been adverse and continuous for a period of 20 years, enabling the defendant to invoke the doctrine of prescription. While, as we have stated, there was evidence tending to rebut a bona fide claim of ownership by the defendant and his mother, on the whole this was a question for jury decision, unless the proceedings to quiet title instituted by Mrs. Jackson, and eventuating in a decree establishing title in Badham, interrupted the continuity of Mrs. Jackson's adverse possession, in such sort as to prevent defendant from showing her possession prior to the decree, and tacking this to her subsequent possession and that of his own in completion of the 20 years.

Appellee's contention in this respect is that, inasmuch as Badham failed to take any steps to enforce the decree, by subsequent action or writ of possession, the decree itself is without virtue to interrupt and break the continuity of her possession, citing in support of this contention Bellenger v. Whitt, 208 Ala. 655, 95 So. 11; Bradford v. Wilson, 140 Ala. 633, 37 So. 295; Bessler v. Powder River Gold Dredging Co., 90 Or. 663, 176 P. 791, 178 P. 237; Rosenstihl v. Cherry, 114 Ohio St. 401, 151 N.E. 642; Endicott v. Haviland, 220 Mass. 48, 107 N.E. 394. In the two cases first cited, it was held, and this seems to be the general rule, that the recovery of a judgment in an action of ejectment for the possession of land, without dispossession by writ thereunder, does not interrupt the continuity of the defendant's possession. 2 C.J. 109. This is so because of the rule of the common law founded on the fictitious character of the action of ejectment, denying conclusiveness to such judgments, now modified by statute requiring two judgments in favor of the defendant founded on the same title as conclusive evidence of his title. Code 1923, § 7474; Pritchard v. Fowler, 171 Ala. 662, 55 So. 147; Miles v. Caldwell, 2 Wall. 35, 17 L.Ed. 755; Remilliard v. Authier, 20 S.D. 290, 105 N.W. 626, 4 L. R. A. (N. S.) 295.

In Rosenstihl v. Cherry, supra, the decree in the action to quiet title was construed as not embracing the lands involved in the subsequent action, and in the course of the opinion the court observed: "The petition must be construed to mean such possession of lot 661 as Flater actually enjoyed at the time. Pleadings are to be construed as referring to the conditions surrounding the parties at the time of filing, unless the contrary appears. It was only so much of lot 661 of which Flater was in possession for which he was entitled to have his title quieted. The fence agreement in Flater's predecessor's deed and the construction placed thereon by the parties after its erection, by each party occupying up to the line thereof, indicate that so much of lot 661 as then occupied by the parties was in contemplation when the suit was filed to remove the various clouds from the title of lot 661." Though much was said in the opinion about the failure of Flater to have the decree carried into effect by writ of possession, the real ground of the decision is indicated by the excerpt quoted above.

In Endicott v. Haviland, supra, the party in possession filed a bill to enjoin her adversary from evicting her, and sought specific performance, and the decree dismissed the bill, and it was there held that this decree did not interrupt the running of the statute of limitations.

While there is conflict in the decisions of the different jurisdictions as to whether a decree in a proceeding to try title is conclusive as to the status of the title as between the parties and their privies, an examination of the cases demonstrates that this conflict arises out of the difference in the statute law of the...