Miller v. Hewell

• Decision Date: 15 September 1960
• Docket Number: 1 Div. 890
• Citation: 271 Ala. 286,123 So.2d 126
• Parties: Exol MILLER et al., v. Bessie V. HEWELL, Admx., et al.
• Court: Alabama Supreme Court

Page 126

123 So.2d 126

271 Ala. 286

Exol MILLER et al., v. Bessie V. HEWELL, Admx., et al.

1 Div. 890.

Supreme Court of Alabama.

Sept. 15, 1960.

Diamond, Engel & Lattof, Mobile, for appellants.

Austill, Austill & Austill, Mobile, for appellees.

MERRILL, Justice.

Appeal from a final decree dismissing appellants' bill of complaint and granting relief to appellees under their cross-bill.

Sim Miller, father of appellants, purchased the lands in question, eighty acres less some exceptions, in 1920. He lived on the property until October, 1954, when his home was destroyed by fire and he was burned to death. The house was not rebuilt.

In November, 1928, Sim Miller deeded the lands to A. P. Hewell, one of the original respondents in the cause. The deed was recorded November 20, 1928. Miller continued to live on the lands until his death.

In 1955, Hewell and wife executed a gas, oil and mineral lease on the lands to one Thomsen, which was transferred to the other original respondent, Lamar Hunt, later in 1955.

The bill of complaint was filed by the children of Sim Miller on August 23, 1957. Pending the trial, A. P. Hewell died and the suit was revived against his administratrix, his heirs at law, and with Lamar Hunt, they became respondents.

The bill was twice amended, and as amended, sought to have the deed from Miller to Hewell declared a mortgage, to have an accounting to determine that the mortgage had been paid in full, or in the alternative, to have the unpaid amount of the mortgage declared barred by the statute of limitations, and to quiet title to the property under Tit. 7, §§ 1109-1115, Code 1940. There was also an aspect that could be denominated a common-law bill quia timet in that it set out an instrument which appears to convey a title superior to that of complainants and seeks to have the same cancelled.

Appellees filed their answer denying the title of appellants, asked that their answer be taken as a cross-bill, and that title be quieted in their favor subject only to the lease held by Lamar Hunt.

After a hearing on the merits, the trial court dismissed the bill and granted the relief sought by the cross-bill.

Some months after the filing of the second amendment to the bill, and twelve days before trial, appellants requested a trial by jury under the provisions of Tit. 7, § 1112. This request was denied, and that ruling is assigned as error. We have said that the denial of trial by jury in a statutory proceeding to quiet title under Tit. 7, § 1109 et seq. constitutes error. Isbell v. Perry, 263 Ala. 292, 82 So.2d 633. But that statement applies only to that statutory proceeding. In Webb v. Bank of Brewton, 265 Ala. 568, 93 So.2d 154, 157, in an opinion written by the author of the Isbell case, we said:

'* * * When the purpose of the bill is to obtain some recognized equitable relief, in addition to declaring a status as provided in sections 1109 and 1112, Title 7, Code, the right to a jury trial granted by section 1112 does not apply. Ex parte Baird, 240 Ala. 585, 200 So. 601.'

As already noted, the bill in the instant case sought recognized equitable relief in addition to the quieting of title under the statute, and the trial court properly denied the demand for jury trial.

Appellants charge error in the overruling of objections to two questions propounded to the witness Crabtree as to whether Hewell offered, in 1931 and in 1949, to sell the property in question to him. The case of Lawrence v. Alabama State Land Company, 144 Ala. 524, 41 So. 612, 614, is cited for the principle that 'while declarations of ownership by a party in possession can be shown in establishing adverse possession, we do not think the rule includes acts of parties who were never in possession,' and the argument is made that Hewell was never in possession of the land.

But the evidence is strong that Hewell was in the constructive possession of the property and it has been held that statements of ownership are admissible when made by a party in constructive possession of property. Williams v. Dent, 233 Ala. 109, 170 So. 202; McElroy, The Law of Evidence in Alabama, § 274, p. 133 (1st ed.). See Owen v. Moxon, 167 Ala. 615, 52 So. 527.

Appellants next urge error in the ruling of the court admitting affidavits made in 1955 by disinterested parties, stating that A. P. Hewell had been in the open, notorious and peaceful possession of the lands since he purchased them in 1928 from Sim Miller.

The case cited by appellants, Hatcher v. Rice, 213 Ala. 676, 105 So. 881, 882, holds that such affidavits, to be admissible, must have been 'made contemporaneously with the conveyance they assume to interpret.' But Tit. 47, § 116, was amended in 1945, Acts of Alabama, p. 559, and the Act was made applicable to 'affidavits heretofore or hereafter made whether the same were made in connection with any particular transaction or merely to perfect title to land.'

These affidavits were admissible under Tit....