Larkin v. Haralson

• Citation: 189 Ala. 147,66 So. 459
• Decision Date: 07 November 1914
• Docket Number: 560
• Court: Supreme Court of Alabama
• Parties: LARKIN v. HARALSON.

66 So. 459

189 Ala. 147

LARKIN v. HARALSON.

No. 560

Supreme Court of Alabama

November 7, 1914

Appeal from Chancery Court, Sumter County; Thomas H. Smith Chancellor.

Bill by Hugh A. Haralson, filed originally against M.C. Foscue and others, for the sale of land for division. Decree for complainant, and respondents appeal. Affirmed.

The bill is filed on the theory that Haralson and Shepherd and Mrs. Foscue were joint owners of a certain 80 of land deriving their title by heritage through Mrs. Irene Larkin. The title was derived in the following manner: W.R. Larkin Mrs. Foscue, and Betty Haralson were the sole heirs of Mrs Allen Larkin; that W.R. Larkin had sold his interest in the property to one D.J. Shepherd, who is made a party; and that Haralson had succeeded to the interest of his first wife, Betty Larkin Haralson, as sole devisee. W.R. Larkin claimed the entire interest in the land, and Shepherd set up that he was an innocent purchaser for value from W.R. Larkin, and also set up in substance that, at the time he was on a trade for the land, Haralson knew that he was on such trade, and, instead of his objecting thereto, offered to sell Shepherd lands belonging to himself.

Patton & Patton, of Livingston, and A.G. & E.D. Smith, of Birmingham, for appellants.

Thomas F. Seale, of Livingston, for appellee.

ANDERSON C.J.

This appeal is taken by W.R. Larkin alone, who did not interpose any demurrer to the bill of complaint in the lower court; and he cannot, therefore, assign nor insist upon error, in the overruling of a demurrer interposed by his co-respondent, who is not complaining of the said ruling. Schiff & Sons v. Andress, 40 So. 824. ^[1]

We are of the opinion that the 80 acres in question belonged to the heirs of Mrs. Larkin, instead of to this appellant alone, and that the chancery court properly held that the appellee was entitled to an undivided one-third interest in same. This being true, he met the requirement of showing a possession, actual or constructive, and a present right to the proceeds in case of a sale. If the appellant was in the actual possession, his possession was for the benefit of the co-tenants; and if not in the actual possession, the constructive possession was in the legal owners, of whom appellee is one.

As to the question of estoppel invoked by Shepherd, it is questionable as to whether or not this appellant can complain of the ruling in this respect, upon...