Guy v. Lancaster

• Decision Date: 22 January 1948
• Docket Number: 6 Div. 601.
• Citation: 250 Ala. 226,34 So.2d 10
• Parties: GUY et al. v. LANCASTER.
• Court: Alabama Supreme Court

34 So.2d 10

250 Ala. 226

GUY et al. v. LANCASTER.

6 Div. 601.

Supreme Court of Alabama

January 22, 1948

Rehearing Denied Feb. 19, 1948.

John A. Altman, of Carrollton, for appellants.

Patton & Robinson, of Carrollton, for appellee.

GARDNER Chief Justice.

Statutory action of ejectment by appellant against appellee for a specifically defined strip of land.

There was verdict and judgment for defendant and plaintiff appeals.

Though in fact the case involved a disputed boundary line between SW 1/4 of NE 1/4 and SE 1/4 of NE 1/4, Sec. 8, T. 21, R. 13 West, in Pickens County, Alabama, yet there was no disclaimer, but a plea of not guilty, and our statute, Title 7, § 942, Code 1940, was not invoked.

Defendant filed two special pleas setting up elements of adverse possession, to which demurrers were interposed and overruled. We find no occasion, under the issues here framed, to inquire into the accuracy of these pleas as the matter therein set forth was available to defendant under his plea of not guilty. Title 7, § 941, Code 1940; Bynum v. Gold, 106 Ala. 427, 17 So. 667; Metropolitan Life Ins. Co. v. Estes, 228 Ala. 582, 155 So. 79.

Coming to the proof, it appears that defendant J. C. Lancaster is the father of Leland Lancaster and in 1931, he, the father, owning the two adjoining forties above noted, deeded to his son Leland the SE 1/4 of NE 1/4, Sec. 8, T. 21, R. 13, containing 40 acres more or less. This was a gift by the father to the son, though the deed recited a $200 consideration. In 1941 Leland conveyed, for a recited consideration of $500, this forty of N. Pate, who in 1943 conveyed it to J. A. Guy, and in 1945 Guy conveyed to his minor children, the real parties in interest here. After the purchase by Guy two surveys were made of this forty by the county surveyor Nettles, and according to his surveys defendant's possession in Leland's forty covers in the aggregate 2.4 acres.

The correctness of these surveys and this conclusion was of course, under the evidence, for the jury's consideration.

Defendant's theory of the case is that upon deeding the forty (SE 1/4 of NE 1/4, Sec. 8) to his son Leland, he and his son agreed upon the dividing line of the two forties, that a fence was there and afterward what is known as the Ballard road, and that he has held the strip of land sued for under claim of ownership and with all elements of adverse possession for a period of more than ten years.

Our holding in Mintz v. Millican, 248 Ala. 683, 29 So.2d 230, supports the theory of the defense of adverse possession as here involved. See also Smith v. Eudy, 216 Ala. 113, 112 So. 640; Pounders v. Nix, 222 Ala. 27, 130 So. 537; Mixon v. Pennington, 204 Ala. 347, 85 So. 562; Smith v. Cook, 220 Ala. 338, 124 So. 898; Forrester v. McFry, 229 Ala. 324, 157 So. 68; Turner v. De Priest, 205 Ala. 313, 87 So. 370; Brantley v. Helton, 224 Ala. 93, 139 So. 283; Notes 69 A.L.R. 1433; 113 A.L.R. 422, et seq. And as this is in fact a boundary line dispute the statute (Title 7, § 828, Code 1940) to which reference is made concerning requisites to the defense of adverse possession is inapplicable. Hancock v. Warren, 235 Ala. 180, 177 So. 907; Denton v. Corr, Ala.Sup., 33 So.2d 625.

Upon the question of consideration for an agreement as to the uncertain boundary line, our cases are to the effect that the mutual promise to abide by the result is sufficient consideration therefor. Cooper v. Slaughter, 175 Ala. 211, 57 So. 477, 480.

Upon the question of adverse possession there were many questions for the jury to consider. Undisputedly neither defendant nor his son Leland was acquainted with government surveys, and the jury could well infer, if such an agreement was made (a jury question) the line so agreed upon was arbitrarily selected as the boundary line between these two forties. Defendant so states and that he has held to that line for more than ten years. He deeded to his son forty acres more or less by government numbers. If the jury accepted the testimony of surveyor Nettles this strip is in the forty deeded by defendant to his son Leland. In Smith v. Cook, supra, there were observations made which are applicable to this cause. If, as there observed, a coterminous land owner holds actual possession of the disputed strip under claim of right openly and exclusively for a continuous period of ten years, believing that he is holding to the true line, he acquires title to that line. Even though the belief as to the correct location originated in a mistake, and it is immaterial what he might or might not have claimed had he known he was mistaken.

But there is a limitation to this principle to the effect if the occupancy to a line is with no intention to claim to it if it should be beyond the true location of the boundary, such possession is not adverse.

When however, one of the coterminous proprietors erects a fence as the dividing line and occupies and claims to it as...