Moore v. McAllister

• Decision Date: 14 April 1921
• Docket Number: 7 Div. 89
• Citation: 88 So. 643,205 Ala. 512
• Parties: MOORE v. McALLISTER.
• Court: Alabama Supreme Court

88 So. 643

205 Ala. 512

MOORE v. McALLISTER.

7 Div. 89

Supreme Court of Alabama

April 14, 1921

Appeal from Circuit Court, St. Clair County; Woodson J. Martin Judge.

Bill by George A. McAllister against J.D. Moore, individually and as Trustee to quiet title to certain lands. From a decree granting the relief prayed, respondent appeals. Affirmed.

M.M. &amp Victor H. Smith, of Pell City, for appellant.

J Wylie Logan, of Birmingham, for appellee.

MILLER J.

This is a bill by George A. McAllister to quiet title to land under section 5443 of the Code of 1907. The bill describes the land, and its allegations follow the requirements of section 5444 of the Code of 1907. Its sufficiency is not questioned by demurrer.

John Moore, individually and as trustee, is made defendant. Individually he disclaims any interest in, title to, or incumbrance on the land. As trustee he denies that complainant was in peaceable possession of the land when suit was commenced, and denies complainant's ownership of the land, but afterwards in the answer admits that complainant is the owner of the land, except as to all timber thereon 10 inches in diameter and upwards at the stump, which he claims is his property.

The answer of the defendant claims title to the trees 10 inches in diameter and up at the stump on the land, from the following sources: (1) Deed from W.H. Tharpe to B.O. Watkins dated December 8, 1906, and duly recorded on January 7, 1907; (2) a mortgage deed by B.O. Watkins to the Title Guarantee, Loan & Trust Company dated July 1, 1909, and duly recorded July 14, 1909; and (3) foreclosure deed made by Title Guarantee, Loan & Trust Company after foreclosing said mortgage, to John D. Moore, as trustee, the purchaser dated February 27, 1912, and duly recorded December 6, 1912.

This was the source of title claimed to the timber on the land by respondent in his answer. It was agreed by the parties in open court that the common source of title was from W.H. Tharpe. W.H. Tharpe and wife conveyed this land to M.N. George by deed, dated June 16, 1911, and duly recorded July 10, 1911. It contained no exception or reservation as to timber. M.N. George and wife conveyed the land to George A. McAllister, the complainant, by deed dated October 1, 1912. It contained no exception or reservation as to timber. Under this deed complainant went into possession of the land, and afterwards made contract for cutting of timber thereon with J.T. Bradshaw. Bradshaw was cutting the timber on the land. He testified that he purchased it from J.D. Moore, but also testified that he was cutting the timber by contract with the complainant; that after he bought the timber on this land from J.D. Moore he made contract with complainant to cut this timber on the land, and was in possession of the timber cutting it. The evidence for complainant showed that he, through his tenant, was in actual possession of some of this land, cultivating it.

The respondent's evidence showed deed from W.H. Tharpe to B.O. Watkins dated December 8, 1906, recorded January 7, 1907. It conveys the following described timber on the land: "all timber ten 10"' and up at the stump" on said land; and "said Watkins shall have five years in which to cut said timber." The intent and purpose of this deed is to convey all timber on said land that was ten inches and up in diameter at stump on December 8, 1906, the date of the deed to B.O. Watkins, and to "allow him five years from that date to cut and remove it."

The respondent then introduced a mortgage deed of B.O. Watkins and wife to Title Guarantee, Loan & Trust Company. It is dated June 29, 1905. This is more than one year and six months before Watkins purchased and received the deed to timber on the land in question. This mortgage does not describe the land or the timber. It conveys "all other real property or interest in real property owned by B.O. Watkins in St. Clair county, Alabama."

This does not convey this timber, for B.O. Watkins had not purchased it. The deed had not been executed to him. The mortgage conveyed what land and timber he then owned in St. Clair county, Ala., but did not convey after-acquired land or interest in land in that county. Clements v. Faull & Co., 181 Ala. 219, 61 So. 264; Corpus Juris, vol. 18, § 267, p. 292. As the mortgage conveyed no title to the timber, its foreclosure and deed after foreclosure conveyed no interest in the timber to defendant.

The defendant in this case does not claim an interest in the whole of the lands. He simply claims in his answer to own the trees on the land now that were "ten inches in diameter and up at the stump" on the 8th day of December, 1906, the date of deed of W.H. Tharpe to B.O. Watkins. When the answer shows this, then the law requires the defendant to specify also by his answer "the manner in which and the sources through such title, claim or interest *** is claimed to be derived and created." Section 5445, Code 1907; Dickinson v. Harris, 155 Ala. 613, 47 So. 78; Stacey v. Jones, 180 Ala. 231, 60 So. 823.

The defendant in his answer specifies the source through which he claims title to the timber. The proof does not correspond with his allegations. In his answer he claims title to the trees through purchase at foreclosure sale under a mortgage executed by B.O. Watkins to the Title Guarantee, Loan & Trust Company. In this he fails. He secures no title to the timber from that source. This mortgage introduced in evidence does not describe and convey...