Moore v. McNider
| Decision Date | 29 September 1989 |
| Citation | 551 So.2d 1028 |
| Parties | Dora Lee Barren MOORE v. John Bruce McNIDER, et al. 88-1123. |
| Court | Alabama Supreme Court |
Ronnie L. Williams, Mobile, for appellant.
Edmon H. McKinley, Thomasville, for appellees.
The defendant, Dora Lee Barren Moore, appeals the judgment of the trial court, based on ore tenus evidence, that partitioned 240.67 acres of land pursuant to Code 1975, § 35-6-20. We affirm.
The issue is whether the evidence in this case, which was tried ore tenus, supported the trial court's conclusion that the land could be equitably partitioned among the plaintiffs and the defendant as co-tenants.
In 1985, plaintiffs John Bruce McNider; Merchants National Bank of Mobile, as successor executor of the estate of Albert Sidney Johnson; Gregory Oris McNider; William E. Downey; and Erlene S. Downey filed an action for an equitable partition of certain land in Clarke County; named as defendants were Dora Lee Barren Moore; Johnny Barren; Viola Barren; Bernest Barren; Ollie Mae B. Patterson; Elsie B. Rambo; the widow; heirs at law and next of kin of Ernest Lee Barren; and any unknown persons claiming an interest in the subject property.
The land consisted of both open land and timberland. Appellant, Ms. Moore, contended that the property could not be equitably partitioned and must be sold for a division of the proceeds. At trial, several expert witnesses for the plaintiffs testified that the property could be fairly and equitably partitioned because the general physical characteristics and the values of the open land and the timberland were much the same. The plaintiffs' expert witnesses were a trust officer of a large bank, who was an expert in dividing property; a real estate broker and appraiser; and a geologist. Plaintiff John McNider testified that he had made significant improvements to the property by constructing drainage ditches, moving earth, planting trees, and maintaining the pastures. The plaintiffs also testified that they had no objection to allowing Ms. Moore to keep the plot of land upon which her house, pig pens, and chicken coop were located if the property was partitioned.
Ms. Moore testified that part of the land was "swamp land," which she said, made a partition of the land inequitable. However, on cross-examination, Ms. Moore's daughter, Golina Blanks, stated that "sometimes it (flooding) happens every year, then again it don't." Ms. Moore's defense also raised a 1968 judgment of the circuit court that ruled that the subject property could not be equitably partitioned among the 19 parties involved in that litigation. Ms. Moore claimed that the improvements that John McNider had made were minor and that the land was essentially the same as it was in 1968.
In January 1989, the trial judge entered the following order after the trial:
"This cause coming on to be heard on March 3rd and 4th, 1987, and it appearing to the Court that all the joint owners were properly notified of this petition; and after the Court having heard testimony in open Court before the Court and the Court having heard, understood and considered the...
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State v. Pressley, 2100618.
...to the trial court's findings of fact, not its conclusions of law.” Ex parte Cash, 624 So.2d 576, 577 (Ala.1993) (citing Moore v. McNider, 551 So.2d 1028 (Ala.1989), and Williams v. Nearen, 540 So.2d 1371 (Ala.1989)).Discussion In Jester v. State, 668 So.2d 822 (Ala.Civ.App.1995), a father ......
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Durbin v. Durbin
...this standard of review is applicable only to the trial court's findings of fact, not its conclusions of law"); Moore v. McNider, 551 So.2d 1028 (Ala.1989); Williams v. Nearen, 540 So.2d 1371 (Ala. 1989); League v. McDonald, 355 So.2d 695 (Ala.1978). We review de novo the application of the......
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Barrow v. Myhand
...determination that the property cannot be equitably partitioned. Black v. Stimpson, 602 So.2d 368, 370 (Ala.1992) (citing Moore v. McNider, 551 So.2d 1028 (Ala.1989) ; Irons v. Le Sueur, 487 So.2d 1352 (Ala.1986) ; Ragland v. Walker, 411 So.2d 106 (Ala.1982) ; English v. Brantley, supra; El......
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Barrow v. Myhand
...that the property cannot be equitably partitioned. Black v. Stimpson, 602 So. 2d 368, 370 (Ala. 1992)(citing Moore v. McNider, 551 So. 2d 1028 (Ala. 1989); Irons v. Le Sueur, 487 So. 2d 1352 (Ala. 1986); Ragland v. Walker, 411 So. 2d 106 (Ala. 1982); English v. Brantley, supra; Elliott v. B......