McDermond v. Hamby

• Decision Date: 03 February 1921
• Docket Number: 6 Div. 194
• Citation: 88 So. 848,205 Ala. 522
• Parties: McDERMOND et al. v. HAMBY.
• Court: Alabama Supreme Court

88 So. 848

205 Ala. 522

McDERMOND et al. v. HAMBY.

6 Div. 194

Supreme Court of Alabama

February 3, 1921

Rehearing Denied April 21, 1921

Appeal from Circuit Court, Cullman County; Robert C. Brickell Judge.

Bill by H.L. Hamby against Lillie McDermond and others to quiet title to land. Decree for complainant, and respondents appeal. Affirmed.

F.E St. John, of Cullman, for appellants.

A.A Griffith, of Cullman, for appellee.

GARDNER J.

This is a statutory bill to quiet title filed by the appellee against the appellants, and from the decree in favor of complainant respondents have prosecuted this appeal.

The bill alleges actual peaceable possession by complainant under claim of ownership of the lands therein described, and other statutory requirements (Code 1907, §§ 5443, 5444), and that these averments were sustained by the proof is not a controverted question here.

The burden of proof was therefore cast upon the respondents to establish their claim or right to the land. As said by this court in Kendrick v. Colyar, 143 Ala. 597, 42 So 110:

"When the complainant, as here, showed by evidence peaceable possession by her of the land as alleged, and that there was no suit pending at the time of the filing of the bill to test the defendant's claim of title, this made a prima facie case, and she was entitled to a decree adjudging defendant's claim invalid unless he established a good title."

See, also, Whittaker v. Van Hoose, 157 Ala. 286, 47 So. 741; Brand v. U.S. Car Co., 128 Ala. 579, 30 So. 60; Adler v. Sullivan, 115 Ala. 582, 22 So. 87.

The complainant, however, went further than these requirements, and showed a recent purchase by himself of the lands in controversy from one W.L. Jones, with proof of continuous adverse possession thereof from the time the latter acquired the land from the Louisville & Nashville Railroad Company in the year 1885 to the time of sale to complainant.

Respondents in their answer set up the purchase of the land by S.A Jones, the wife of W.L. Jones, from the Louisville & Nashville Railroad Company, insisting that the deed was executed to her, and that, the wife having died soon thereafter, the possession of the husband was only that of a tenant for life. We are of the opinion that the respondents have failed to establish the averments of their answer by legal proof. The respondents have failed to show by competent and legal proof the execution and delivery of...