Hagan v. Crowley, 1 Div. 584

CourtSupreme Court of Alabama
Writing for the CourtGOODWYN
Citation90 So.2d 760,265 Ala. 291
PartiesEugene W. HAGAN et al. v. John J. CROWLEY, as Executor, et al.
Docket Number1 Div. 584
Decision Date15 November 1956

Page 760

90 So.2d 760
265 Ala. 291
Eugene W. HAGAN et al.
John J. CROWLEY, as Executor, et al.
1 Div. 584.
Supreme Court of Alabama.
Nov. 15, 1956.

[265 Ala. 292]

Page 761

Gordon & Jansen, Mobile, for appellants.

[265 Ala. 293] Mell A. Frazer and Caffey, Gallalee & Caffey, Mobile, for appellees.

GOODWYN, Justice.

This is a statutory ejectment suit brought by appellees against appellants to recover possession of a tract of land bordering on what is now known as Robinson's Bayou, near Dog River in Mobile County. The case was tried without the intervention of a jury, the evidence being taken orally before the trial judge. From a judgment in favor of plaintiffs, the defendants prosecute this appeal.

It is insisted by appellants that judgment should have been in their favor because, first, appellant Hagan has acquired title to the property by adverse possession, and second, title to the property is outstanding in a third party. The other appellant-defendant, Rachel Hayes, is Hagan's tenant in actual occupancy of the property.

In the final analysis, the validity of appellants' defenses turns upon questions of fact. We have carefully examined the evidence which, on the points in issue, is conflicting. From a consideration of this conflicting evidence the trial court resolved the factual issues in favor of the plaintiffs. When, as here, testimony is taken orally before the trial court, the established rule is that a finding by such court on the facts has the effect of a jury's verdict and will not be disturbed on appeal unless plainly and palpably wrong or against the great preponderance of the evidence. Spruiell v. Stanford, 258 Ala. 212, 216, 61 So.2d 758, and cases there cited. In the light of this rule, we see no basis for disturbing the trial court's decision.

Adverse Possession

It appears to be established by the evidence, and the parties apparently concede, that title to the disputed tract was vested in one Daniel Kelly in 1859. Plaintiffs made out their prima facie case by showing a direct chain of title from Kelly to them. There is no question about the property in dispute being included in the instruments in the chain of title.

Briefly, the evidence as to adverse possession is as follows: Defendant Hagan received a deed from Eleanor S. Burgett, a widow, dated October 1, 1936, which he claims conveys to him the disputed property together with an additional tract. This deed was not recorded until 1942, some six years before the filing, in 1948, of the ejectment suit. Hagan listed the property for taxation and paid the taxes for the years 1937 through 1948. In 1946 he built two small houses on the tract, one of which was occupied by defendant Rachel Hayes with Hagan's permission. He testified that [265 Ala. 294] he did not rent to the people on the place, that 'they were just free to stay there, so they could take care of the boats, and we would go down there on Sunday or something like that fishing, we would have a boat.' Prior to 1946 there was no one living on the property and it was not put to any use except as an occasional fishing and picnicking spot. There is some evidence that people kept boats anchored on the water front, with Hagan's permission, but it is not clear how long this had been done, nor just how it had been so used. Hagan testified that he had lived in Mobile and had been regularly engaged in business there for the past 20 years.

Code 1940, Tit. 7, § 828, provides in part as follows:

'Adverse possession cannot confer or defeat title to land unless the party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded in the office of the judge of

Page 762

probate of the county in which the land lies for ten years before the commencement of the action; or unless he and those through whom he claims shall have annually listed the land for taxation in the proper county for ten years prior to the commencement of the action, if the land is subject to taxation; or, unless he derives title by descent cast, or devise from a predecessor in the title who was...

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12 cases
  • Courtney v. Boykin
    • United States
    • Supreme Court of Alabama
    • March 10, 1978
    ...rests upon the party claiming title by it. Dixon Lumber, supra; James v. Mizell, 289 Ala. 84, 265 So.2d 866 (1972); Hagan v. Crowley, 265 Ala. 291, 90 So.2d 760 (1956); and Webb v. King, 268 Ala. 282, 105 So.2d 653 (1958). Rare and widely separated acts do not satisfy this burden; they cons......
  • Johnson v. Harrison, 7 Div. 452
    • United States
    • Supreme Court of Alabama
    • March 2, 1961
    ...263 Ala. 391, 82 So.2d 558; Adams Supply Co. v. United States Fidelity & Guaranty Co., 269 Ala. 171, 111 So.2d 906; Hagan v. Crowley, 265 Ala. 291, 90 So.2d Having considered the entire record as it bears on the issues, it is the opinion of this court that the decree of the Court of Equity ......
  • Vestavia Country Club v. Armstrong, 6 Div. 472
    • United States
    • Supreme Court of Alabama
    • July 14, 1960
    ...Davis v. State ex rel. Pettus, 264 Ala. 233, 86 So.2d 849; Smith v. State ex rel. Sullinger, 265 Ala. 138, 90 So.2d 225; Hagan v. Crowley, 265 Ala. 291, 90 So.2d 760; [271 Ala. 298] McBee v. McBee, 265 Ala. 414, 91 So.2d 675; Fidelity-Phenix Fire Ins. Co. v. Lawler, 38 Ala.App. 245, 81 So.2......
  • Machen v. Wilder, 7 Div. 772
    • United States
    • Supreme Court of Alabama
    • October 31, 1968
    ...under color of title, a very strict burden to establish his title rests upon the one claiming adverse possession. Hagan v. Crowley, 265 Ala. 291, 90 So.2d 760; Spradling v. May, 259 Ala. 10, 65 So.2d 494; Duke v. Harden, 259 Ala. 398, 66 So.2d 899. We said in Spradling v. May, supra (259 Al......
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