Jones v. Rutledge

• Decision Date: 21 November 1918
• Docket Number: 5 Div. 706
• Citation: 80 So. 35,202 Ala. 213
• Parties: JONES et al. v. RUTLEDGE et al.
• Court: Alabama Supreme Court

80 So. 35

202 Ala. 213

JONES et al. v. RUTLEDGE et al.

5 Div. 706

Supreme Court of Alabama

November 21, 1918

Appeal from Circuit Court, Russell County; J.S. Williams, Judge.

Bill bye Lovick Rutledge and others against Annie Jones and others for partition of land. Decree for plaintiffs, and defendants appeal. Reversed, rendered, and remanded.

Norman & Rainer, of Union Springs, for appellants.

Frank M. De Graffenried, of Seale, and Denson & Sons, of Opelika for appellees.

SAYRE J.

By their bill in this cause, filed in 1913, appellees claimed the right to a sale for partition on the ground that they, as grandchildren, and appellants, as children, had inherited the property in controversy from Anderson G. Jones, deceased. The parties were so related to their common ancestor; but that ancestor died in 1883, and upon considering the evidence with due care our opinion is that for more than 20, probably for nearly as long as 30 years, defendants and those under whom in part they claim, and others claiming in privity with them as their agents, have been continuously in possession exercising acts of ownership, and claiming the land as their own, to the exclusion of appellees, and in such sort, generally, as to make the doctrine of Miller v. Vizzard Investment Co., 195 Ala. 467, 70 So. 639 Kidd v. Borum, 181 Ala. 144, 61 So. 100, Ann.Cas.1915C, 1226, and some other of our cases, clearly applicable; that is, in such way as to vest title in appellants by prescription as against appellees, nothwithstanding it should be conceded, as appellees contend, that title has not passed to them through other channels.

It seems to be a fact that recently before this bill was filed the brother of appellants, and cotenant with them, who for many years had controlled the property for them and himself, on an occasion when they desired to negotiate a loan on the property, and presumably found an obstacle in the cloudy state of the title, applied to some of appellees for a quitclaim; but this, under the circumstances, we do not look upon as an admission that appellees had any meritorious claim to the property. It appears rather to have implied an assertion, on the part of the cotenant making the application, of the fact, until then commonly accepted among the descendants of Anderson G. Jones, that the moral ownership, if not the strict legal title, of the property in question, was in these appellants.

Nor was the...