Guy v. Lancaster

• Decision Date: 26 February 1948
• Docket Number: 6 Div. 602.
• Citation: 250 Ala. 287,34 So.2d 499
• Parties: GUY et al. v. LANCASTER.
• Court: Alabama Supreme Court

34 So.2d 499

250 Ala. 287

GUY et al. v. LANCASTER.

6 Div. 602.

Supreme Court of Alabama

February 26, 1948

John A. Altman, of Carrollton, for appellants.

Patton & Patton, of Carrollton, for appellee.

SIMPSON Justice.

The plaintiffs have appealed from an adverse judgment in a statutory action of ejectment where they sued for the recovery of a specifically described strip of land along the north side of the SE 1/4 of the NE 1/4 of Section 8, Township 21, Range 13 West, Pickens County, Alabama.

This disputed area was between the SE 1/4 of the NE 1/4 owned by the plaintiffs and the NE 1/4 of the NE 1/4 owned by the defendant and the real question was a determination of the true boundary line between these two forties, the plaintiffs claiming the strip as a part of the forty acres embraced in their deed.

There was no disclaimer as authorized by § 942, Title 7, Code 1940. The defense relied on was adverse possession of the disputed area by the defendant for more than ten years and the plea was in effect one of not guilty, though there were several special pleas setting up elements of adverse possession. Demurrers were overruled to these several pleas, but as the Chief Justice pointed out in the opinion in the kindred case of Guy v. Lancaster, Ala.Sup., 34 So.2d 10, 12. '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.'

On the evidence, it appears that the defendant's father, J. C Lancaster, at one time owned both of the above-mentioned forty acres and the forty acres (SW 1/4 of NE 1/4) immediately west of the plaintiffs' property. In 1930 J C. Lancaster conveyed to his son Harvey Lancaster, the defendant here, the north forty (NE 1/4 of NE 1/4) and in 1931 to another son, Leland Lancaster, the SE 1/4 of the NE 1/4, now owned by the plaintiffs. These conveyances were gifts by the father to the sons, though the deed to Harvey recited a cash consideration of $500 and the one to Leland a cash consideration of $200. Harvey still owns his land, but Leland, in 1941, for a recited consideration conveyed his forty acres more or less to 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 who have sued by their father, as next friend. After the purchase by Guy of this forty, he had two surveys made in order to establish his west boundary line between himself and J. C. Lancaster and the north boundary line between his land and that of the defendant, Harvey. According to these surveys J. C. Lancaster's possession in plaintiffs' forty aggregated about three and four-tenths acres and Harvey's possession in the same forty covered the area sued for in the instant suit. The plaintiffs accordingly instituted separate statutory ejectment suits against J. C. Lancaster for the disputed acreage on his west side and against Harvey for the strip on the north side described in this suit. Verdicts and judgments were rendered in each case for the respective defendants and the above-cited case of Guy

v. Lancaster is the result of the appeal in the suit against J. C. Lancaster.

We should note here that a reversal was ordered in the last-mentioned case because of erroneous rulings of the court in regard to the exclusion of evidence, but the record under review here is not infected with the same error and we perceive no erroreous rulings, in regard to any evidence, which would warrant a reversal of the cause.

The correctness of the two surveys, the exact location of the disputed boundary line between the two forties and the right, vel non, to recover, was, under the evidence, a matter for the jury's determination (Guy v. Lancaster, supra) and as the jury's verdict on the issues presented was not manifestly wrong and unjust, but was well sustained, we must affirm the jury's conclusion on these facts. Wayne Pump Co. v. Harrison, 247 Ala. 186, 23 So.2d 392; Sorrell v. Lindsey, 247 Ala. 630, 25 So.2d 725; Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738.

The theory of the defense in the case, as it was in the J. C. Lancaster case, is that, upon deeding the north forty (NE 1/4 of NE 1/4) to his son Harvey and the south forty (SE 1/4 of NE 1/4) to his son Leland, J. C. Lancaster pointed out to his two sons the dividing line of the two forties; that the sons agreed upon the line so pointed out as the true division line between the properties; that the said line was a welldefined road and a fence which separated the two properties and was thereafter abided by and recognize between the respective parties as the true division line and that the defendant Harvey has held the disputed strip of land up to this agreed line under claim of ownership with all elements of adverse possession for a period of more than ten years. This defense is well recognized in the authorities. When parties agree upon the location of a line fence and abide by such a division line and one holds actual, peaceable, and exclusive possession of the property within the boundary, his possession is adverse and if continued for ten years ripens into title. Guy v. Lancaster, supra; Brantley v. Helton, 224 Ala. 93, 139 So. 283; Duke v. Wimberly, 245 Ala. 639, 18 So.2d 554; Alford v. Rodgers, 242 Ala. 370, 6 So.2d 409.

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