Miller v. Vizard Inv. Co.

• Decision Date: 16 December 1915
• Docket Number: 554
• Parties: MILLER et al. v. VIZARD INV. CO. et al.
• Court: Alabama Supreme Court

70 So. 639

195 Ala. 467

MILLER et al. v. VIZARD INV. CO. et al.

No. 554

Supreme Court of Alabama

December 16, 1915

Appeal from Chancery Court, Coosa County; W.W. Whiteside Chancellor.

Bill by Fanny Miller and others against the Vizard Investment Company and others. Decree for defendants dismissing the bill, and complainants appeal. Affirmed.

McClellan and Gardner, JJ., dissenting.

John A Darden, of Goodwater, for appellants.

Felix L. Smith, of Rockford, and Thomas & Wiley, of Montgomery, for appellees.

SOMERVILLE J.

The bill is filed for the purpose of effecting a sale for division of a certain tract of land which belonged to the father of the parties complainant and defendant. Their father died in 1877, and one son, A.I. Vanzandt, who was then living on the place with him, continued in the sole and exclusive possession, use, and enjoyment of the premises until his death in 1909. During all this time, as we think the evidence satisfactorily shows, A.I. Vanzandt, who paid $100 of the purchase money due to his father's vendor, treated the land in all respects as his own property, claimed to own it in his own right, took and appropriated the rents and profits without accounting to or recognizing any rights in his brothers and sisters, and in fact made a sale of the entire interest in a part of the tract. And during this long period of 32 years there was no assertion by his cotenants, his brothers and sisters, of their rights in the premises, and no interruption of his peaceable and exclusive possession and enjoyment. The reason suggested for this acquiescence and inactivity on the part of the cotenants, who are the complainants in this bill, is that A.I. Vanzandt was afflicted with rheumatism, and it was understood among them that he should keep the place as long as he lived without interference by themselves. It is not claimed, however, and the evidence fails to indicate, that there was any agreement with or notice to him to that effect, or that his continued possession was permissive in any legal sense.

The defendant, who is a daughter of A.I. Vanzandt, denies the allegation of the bill that she is a cotenant of complainants, and claims the exclusive ownership by prescriptive title in her father, and also sets up laches in the prosecution of complainants' rights.

For the purposes of this case, it might be conceded that the evidence does not convincingly show such a disseisin of the complainants by defendant's father as would be...