Machen v. Wilder
| Decision Date | 31 October 1968 |
| Docket Number | 7 Div. 772 |
| Citation | 283 Ala. 205,215 So.2d 282 |
| Parties | Joe S. MACHEN, Jr. v. W. F. WILDER et al. |
| Court | Alabama Supreme Court |
Dortch, Allen, Wright & Wright, Gadsden, for appellant.
Lusk, Swann, Burns & Stivender, Gadsden, for appellees.
This appeal is from a decree quieting title in complainants to a parcel of land claimed by coterminous owners.
Appellees' bill of complaint alleged that they, W. F. Wilder and wife Edna, were in peaceable possession under claim of right to a strip of land fronting 15 feet on Lookout Street in Gadsden, running back approximately 195 feet and widening to a width of 30 feet on the back, being the west portion of Lot 2 in Block 1 of the recorded A. L. Small Addition to Alabama City.
Appellant, Joe S. Machen, filed an answer and cross bill in which he denied appellees' peaceable possession, claimed that he had been the legal owner of the property for over forty years, and set out his title back to 1924. He set out appellees' title, and alleged that appellees' predecessor in title had been given permissive use of a portion of the strip he claimed for use as a driveway, and prayed that he be declared the legal title holder to the strip in controversy.
These facts are undisputed: Lot 1, Block 1 of the A. L. Small Addition fronts Bomar Street 195 feet on the west and is bounded by Lookout Avenue on the south, 54.9 feet and an alley on the north 54.9 feet. Lot 2 is east of Lot 1. It is also 195 feet by 54.9. Appellees own Lot 1 which has a house on it near the line between Lots 1 and 2, and facing Lookout Avenue on the south. Appellant owns Lots 2, 3 and 4 and a house is on those lots. A. L. Small platted these lots prior to 1924 and on July 15, 1924, he sold Lots 2, 3 and 4 to Gordon B. Moore, and built a house on Lot 1 which he retained, and Small lived in the house until he sold Lot 1 to E. D. Gross in 1933. The Grosses moved away in 1951 and rented Lot 1 until they sold it to appellees, their daughter and son-in-law, in 1962. Each of these conveyances described the property conveyed as Lot 1 in Block 1.
Appellant's predecessors in title were his father, his grandmother and an uncle. His father purchased the land from his grandmother in 1936, and he had lived on the property since he was five or six years old and his age was forty at the time of the trial. His conveyances of title had described all of Lot 2; he and his predecessors had paid taxes on all of Lot 2 and he had paid the paving assessments on the entire width of Lot 2.
Also undisputed is that appellees and their predecessors in title had used the driveway that was west of an old hedge row, and had maintained it by putting down gravel and slag and had been in the actual possession of the driveway for more than twenty years.
When the boundary line between Lots 1 and 2 was surveyed, the corner and the true line was found to be in the driveway.
The trial court held that appellees were entitled to a strip of Lot 2 beginning at the southwest corner of Lot 2 on Lookout Avenue, thence north along the west line of Lot 2 for 133.25 feet, thence east 14.38 feet, thence back south toward Lookout Avenue 133 feet to a point which was 8.7 feet east of the southwest corner of Lot 2 and thence west to the point of beginning. This probably was a description of that part of the driveway use by appellees, but nowhere in the record is there any proof or record of such a description.
The trial court correctly held that appellees had no claim on the remainder of Lot 2 between the driveway and north to the alley because there is no evidence to support a claim to that part of the lot.
The main question presented to us is whether the evidence supports the holding of the court that the part of Lot 2, which we have presumed was a description of the driveway, was the property of appellees instead of appellant.
The usual presumption accorded the findings of the trial court cannot be indulged in this cause. The testimony was taken before Circuit Judge Virgil Pittman, but shortly thereafter, and before deciding this case, Judge Pittman accepted an appointment to the federal judiciary. His successor decided the case and rendered the decree before us on appeal.
Where none of the evidence was taken orally before the judge rendering the judgment or decree, there is no presumption in favor of his findings from the evidence on appeal. We must sit in judgment on the evidence. Henslee v. Merritt, 263 Ala. 266, 82 So.2d 212; Blevins v. McCarty, 266 Ala. 297, 96 So.2d 437; Gibson v. Bryant, 267 Ala. 97, 100 So.2d 32.
In a statutory suit to quiet title, a prima facie case is made where it is shown that the complainant is in the peaceful possession of the land, either actual or constructive at the time of the filing of the bill and that there was no suit pending to test the validity of title, and the burden is then upon the respondent to establish his claim to the land. Burkett v. Newell, 212 Ala. 183, 101 So. 836. But when the respondent shows legal title to the land, the burden of avoiding it by showing superior title by adverse possession shifts to the complainant. Stewart v. Childress, 269 Ala. 87, 111 So.2d 8; Merchants National Bank of Mobile v. Hall, 278 Ala. 319, 178 So.2d 146.
Here, appellant-respondent showed the only record title to Lot 2 for over twenty years, while appellees showed actual possession of the driveway for over twenty years. Under the authorities cited supra, the burden was on appellees to show that this twenty-year possession was adverse. Appellant claims the possession was permissive, and appellees claim it was adverse.
In Stewart v. Childress, 269 Ala. 87, 111 So.2d 8, we said:
'* * * We quote the applicable rule from the case of Dothard v. Denson, 72 Ala. 541:
"The mere possession of land is not Prima facie adverse to the title of the true owner. All presumptions and intendments are favorable to the title, and possessions are not presumed to be hostile, but rather in subordination to it. * * * But, though this presumption attaches to the possession--that it is an occupancy by right-- the presumption disappears in the presence of the title. When the title is shown not to attend the possession, but that it resides in another, the law, not favoring wrong, will not presume that the possession was taken, or is held and claimed, in hostility to the title. The burden of proving the possession adverse--that it was taken and held under a claim of title hostile to the title of the true owner--rests upon the party asserting it. (Cases cited.)' (Emphasis supplied.) 'This principle was reaffirmed in White v. Williams, 260 Ala. 182, 69 So.2d 847. This last cited case also gave expression to the principle that a permissive possession does not ripen into title unless there has been such a repudiation of the permissive possession as to afford notice of an adverse claim. In further illucidating the principle it was also held: Limitations being to run from the date of notice of hostility but are not operative before hostility is shown, and whether the possession was with the intention of claiming title is generally held to be a question of fact; a permissive occupant cannot change his possession into adverse title no matter how long possession may be continued, in the absence of a clear, positive and continuous disclaimer and disavowal of the title of the true owner brought home to the latter's knowledge; there must be either actual notice of the hostile claim or acts or declarations of hostility so manifest and notorious that actual notice will be presumed in order to change a permissive or otherwise nonhostile possession into one that is hostile.
'This Court has repeatedly held that where one claims title to land through an unbroken chain of record title against another who relies upon...
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