Hart v. Allgood

• Decision Date: 15 April 1954
• Docket Number: 5 Div. 580
• Citation: 260 Ala. 560,72 So.2d 91
• Parties: HART et al. v. ALLGOOD et al.
• Court: Alabama Supreme Court

Page 91

72 So.2d 91

260 Ala. 560

HART et al. v. ALLGOOD et al.

5 Div. 580.

Supreme Court of Alabama.

April 15, 1954.

Wm. L. Dickinson, Opelika, for appellants.

Sam W. Oliver, Dadeville, for appellees.

LAWSON, Justice.

J. R. Allgood and wife conveyed the suit property by warranty deed to Homer Hart on April 25, 1930. On the same day Homer Hart and wife, Mary Hart, executed a purchase money mortgage on the suit property to J. R. Allgood. J. R. Allgood died intestate on January 3, 1934, survived by one son, Ralph, and a daughter, Vivien, the wife of Jos. T. Banks. Ralph Allgood was made administrator of his father's estate shortly after latter's death.

On March 20, 1940, the purchase money mortgage executed by Homer Hart and wife was foreclosed. Ralph Allgood, as administrator of the estate of J. R. Allgood, deceased, became the purchaser of the suit property at the foreclosure sale and received a deed thereto from the auctioneer.

Ralph Allgood in December of 1951 conveyed his interest in the suit property to his sister, Vivien A. Banks, and her husband, Jos. T. Banks, who in turn executed a warranty deed on April 16, 1952, conveying the suit property to Robert S. Payne.

On May 17, 1952, the appellants, averring that they are the heirs at law of Homer Hart, filed their bill in the circuit court of Tallapoosa County, in equity, to quiet the title to the suit property. The bill was filed against the suit property as a proceeding in rem and against Ralph Allgood, 'administrator of and heir to the estate of J. R. Allgood, deceased,' Dr. Jos. T. Banks and wife, Vivien A. Banks, and Robert S. Payne. The bill was filed under the provisions of §§ 1116-1132, Art. 2, Ch. 32, Title 7, Code 1940, as amended by an act approved September 12, 1951, Acts 1951, Vol. 2, p. 1521. Such provisions have been referred to as "Proceedings in Rem to Establish Title to Land".-- Ex parte Arrington, 259 Ala. 243, 66 So.2d 96, 97; Sisson v. Swift, 243 Ala. 289, 9 So.2d 891; Miller v. Gaston, 212 Ala. 519, 103 So. 541. See Merchants Nat. Bank of Mobile v. Morris, 252 Ala. 566, 42 So.2d 240.

The cause was submitted for final decree on the pleadings and on testimony taken orally before the trial court. Upon a consideration of only the competent, legal, material and relevant evidence the trial court concluded that the complainants were not entitled to the relief prayed for and dismissed their bill. From such decree the complainants below have appealed to this court.

Under the provisions of § 1116, Title 7, Code 1940, as amended, one who claims to own lands or any interest therein, if no suit is pending to test his title to, interest in, or his right to the possession of the lands, may file a verified bill of complaint in the circuit court in equity of the county in which such lands lie, against the lands and any and all persons claiming or reputed to claim any title to, interest in, lien or encumbrance on said lands, or any part thereof, to establish the right or title to such lands, or interest, and to clear up all doubts or disputes concerning the same, when either of the following situations is shown to exist:

1. When the complainant is in the actual, peaceable possession of the lands.

2. When neither the complainant nor any other person is in the actual possession of the lands and complainant has held color of title to the lands, or interest so claimed, for a period of ten or more consecutive years next preceding, and has paid taxes on the lands or interest during the whole of such period.

3. When complainant and those through whom he claims have paid taxes during the whole of such period of ten years on the lands or interest claimed, and no other person has paid taxes thereon during any part of said period.

Although a bill filed under this section may contain averments good as against demurrer, the court must deny relief and dismiss the bill unless one of the situations enumerated above is proven.

We come now to consider the evidence as it bears on each of the situations enumerated above.

Homer Hart, his wife, Mary, and some of their children continued to live on the suit property after the foreclosure sale in March, 1940, until Homer's death in June, 1951. After Homer's death, Mary Hart or one or more of the children lived on the suit property and were living there at the time this suit was filed. The occupied the house which had been constructed prior to foreclosure and to which Homer had added a room after foreclosure. Only a few of the 120 acres of land were in cultivation, most of it being timberland.

But actual possession alone is not sufficient to enable complainants to maintain their bill on the theory presently under consideration. The possession of the complainants must have been peaceable as contradistinguished from a contested, disputed or acrambling possession. Sisson v. Swift, supra. And it was incumbent, of course, upon complainants to show their peaceable possession at the time of...