Merchants Nat. Bank of Mobile v. Hall

• Decision Date: 02 September 1965
• Docket Number: 1 Div. 245
• Citation: 278 Ala. 319,178 So.2d 146
• Parties: MERCHANTS NATIONAL BANK OF MOBILE et al. v. C. B. HALL.
• Court: Alabama Supreme Court

Page 146

178 So.2d 146

278 Ala. 319

MERCHANTS NATIONAL BANK OF MOBILE et al. v. C. B. HALL.

1 Div. 245.

Supreme Court of Alabama.

Sept. 2, 1965.

Chas. B. Bailey, Jr., for McCorvey, Turner, Johnstone, Adams & May, and Lyman F. Holland, Jr., for Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellants.

Jas. R. Owen, Bay Minette, for appellee.

HARWOOD, Justice.

C. B. Hall filed a bill in accordance with Secs. 1109 et seq., Title 7, Code of Alabama 1940, to quiet title to certain lands situated in Baldwin County, Alabama. By amendment the Merchants National Bank of Mobile and the First National Bank of Mobile, as trustees of the Dr. Monte L. Moorer Foundation, were designated as respondents. For convenience the respondents will hereinafter be referred to as the Banks.

The Banks' demurrer to the bill being overruled they filed an answer and cross bill in which they prayed for a decree establishing and defining the true boundary line between the property of the complainant and the property of the respondents, and for an accounting by the complainant for funds received by complainant from timber cut by complainant on the disputed tract.

The complainant's demurrer to the answer and cross bill was overruled, and complainant then filed his answer to the cross bill. Issue was then joined.

The suit essentially involves a dispute as to the true boundary line between the contiguous property of the complainant and respondents.

The boundary line asserted by the respondents was allegedly an old boundary line anchored to a lightwood stob on the southeast corner of their property with a blazed line running in a westerly direction.

The line asserted by the complainant was based on a survey made by N. L. Durant for the complainant in 1962. This line was roughly some 483.5 feet north of the old blazed line contended for by the respondents. The strip lying between the two lines contains some 137 acres, and is the disputed land.

After hearing, the court rendered its decree in which it found, among other things, the true boundary line to be as asserted by the complainant, and that the respondents had no right or title to the strip of land lying between the boundary line asserted by the respondents and that asserted by the complainant.

The evidence introduced below shows that the land of the complainant and that of the respondents was originally a part of a tract of land lying in the Thomas Byrne Spanish Grant Section 8, Township 2 South, Range 2 East, in Baldwin County. In 1862 the original tract was conveyed by Byrne to Young C. Hall, and was specifically described, with the addendum that the land conveyed was 'supposed to contain fourteen hundred acres.'

In 1892 Young C. Hall by three separate deeds conveyed to each of his three children respectively a part of the land he had acquired in 1862, the totality of the conveyances consuming the entire tract.

Each of these conveyances recited that the respective portion conveyed consisted of one-third of the original Young C. Hall tract. Thus each child acquired 466.6 acres, since the Young C. Hall tract was supposed to contain 1400 acres.

The north one-third was thus conveyed to Origin C. Hall, the middle one-third to Virginia M. Jernigan, and the south one-third to Lyman J. Hall. Lyman J. Hall was the father of the complainant. The boundary lines between the respective tracts were not fixed in these deeds.

The south one-third was bequeathed to the complainant and his brother, Joseph Hall, by their mother, Laura Hall. In the will of Laura Hall this south one-third is described as being 'bounded on the north by the Charles Hall land,' and was stated to consist of 467 acres.

By various deeds the complainant secured interests of Joseph Hall in the south one-third of the land bequeathed in his mother's will.

Again in these deeds to complainant the south one-third is described as being bounded on the north by the lands of Charles Hall, and was stated to contain 467 acres.

In 1954, the complainant executed a gas, oil, and mineral lease on this south one-third tract which recited that the tract contained 467 acres.

The uncontradicted evidence shows that for the years 1931 through 1962 the complainant, and his predecessors in title to the south one-third, described the land in their tax assessments as being '467 acres north of the Louisville and Nashville Railroad in Sec. 8, Township 2 South, Range 2 East.' In 1963 this assessment was charged to increase the area to 686 acres.

Thus the record title of complainant is clearly shown to be to the south one-third of the original Young C. Hall tract, or 467 acres, on the basis that the original Young C. Hall tract contained 1400 acres.

Dr. Monte L. Moorer derived his title from Clara J. Hall, Mattie Louise Hall, both unmarried, and Ethel Ray Hall, a widow. These three had derived their title to the north two-thirds of the original Young C. Hall tract from Origin C. Hall and Virginia M. Jernigan, the original grantees of the two north thirds.

In their deed to Dr. Moorer the land conveyed by the above named grantors was described by metes and bounds, with the following addition:

'It is the intention of the parties of the first part to convey to the party of the second part and they do hereby convey to him all lands now owned by them in Section 8, Township 2 South, Range 2 East above referred to regardless of whether such lands are correctly described or not.'

In connection with this addendum to the description Paul Teter, an abstracter with the Baldwin County Abstract Company, and a witness for the complainant, testified that he prepared an abstract covering a parcel of land in Section 8, supra, in the course of which he was shown a survey purportedly made by a Mr. Greenwood. This survey was not certified, nor recorded, and showed no amount of acreage, but was supposed to show the middle one-third of the original Young C. Hall tract. Teter did not know if the plat was accurate. Moorer had contracted to buy the north two-thirds of the original Young C. Hall tract or roughly 934 acres. The description contained in the deed to Moorer was prepared by Teter after searching the records but he did not know whether the description was accurate. After a discussion of the accuracy of the description, it was decided to put in the addendum to the description.

Thus it is clear under the evidence that at the time of the proceedings below the record title to the north two-thirds of the original Young C. Hall tract was in the Banks, as trustees of The Dr. Moorer Foundation, and the record title to the south one-third of said tract was in the complainant. Since the original Young C. Hall tract was described in the deeds by Young C. Hall as supposed to contain 1400 acres, the north two-thirds should be deemed to contain 933.2 acres.

As before stated, the complainant claims the north boundary line to be one established by the Durant survey made at his request in 1962.

On direct examination Mr. Durant testified that complainant's Exhibit 2 was a plat of a portion of the Thomas Byrne Grant. Actually, it is a plat of the lands claimed by complainant. He obtained a description of the property from the courthouse records, and the location of the northeast corner of complainant's land (which would be the southeast corner of respondent's land) was established from the record (description) of the property on the north, that is by reference to the description of the Moorer land contained in the deeds from Clara L. Hall et al to Dr. Moorer.

On cross examination Mr. Durant testified that his survey was predicated entirely on the description and figures contained in the deed from the Hall sisters to Dr. Moorer, and he had no knowledge of the correctness of this description. His location of the northeast corner of complainant's land 'tied into the railroad with the description we had, more or less reasonably close; it didn't check exactly.' These figures tying into the railroad he thought possibly came from the tax assessor's office, but he was not sure where they came from.

In his survey of the east boundary line, Mr. Durant found a lightwood stob that had apparently been there twenty or thirty years, and there were old 'witness trees' around this stob. There was a blazed line running westerly from this stob, with some of the trees having been reblazed.

The northeast corner of complainant's tract, as established by Durant's survey, was some 483.5 feet northwesterly of the old stob. Mr. Durant stated there was no evidence of any prior location of the northeast corner at the place he established it.

From the northeast corner as established by his survey, Mr. Durant ran a line westerly to the river 'according to the map,' and thus established the northern boundary of complainant's land. He blazed a line along the boundary. According to Mr. Durant's survey the complainant's part of the original Young C. Hall tract would contain 686.1 acres. This Durant boundary was of course north of the old blazed line running from the old lightwood stob.

Since Mr. Durant established the northeast corner of complainant's land by reference to the description contained in the deeds to Dr. Moorer, the probative force of the correctness of his location is rendered negative when it is remembered that in these deeds to Dr. Moorer it was provided by the addendum that it was the intent of the grantors to convey all lands owned by them in Section 8, supra (i. e., the northern two-thirds of the Young C. Hall tract) 'regardless of whether such lands are correctly described or not.'

O. W. Lyles, a witness for the complainant, testified that for some eighteen years he had been a forester for S. M. Adams, Inc., and was familiar with the land involved in this suit.

About eighteen years ago Adams had, at shortly separated intervals, bought the timber from the then owners of both the northern two-thirds portion and the southern portion of the Young C. Hall tract....