Oliver v. Williams

• Court: Supreme Court of Alabama
• Citation: 163 Ala. 376,50 So. 937
• Parties: OLIVER v. WILLIAMS.
• Decision Date: 16 December 1909

50 So. 937

163 Ala. 376

OLIVER
v.
WILLIAMS.

Supreme Court of Alabama

December 16, 1909

Appeal from Circuit Court, Marengo County; John T. Lackland, Judge.

Ejectment by Arthur Williams against J. H. Oliver. Judgment for plaintiff, and defendant appeals. Reversed and remanded. [50 So. 938]

J. M. Miller, for appellant.

William Cunninghame, for appellee.

SAYRE. J.

Statutory action in the nature of ejectment. Plaintiff and defendant in the trial court, who are respectively appellee and appellant here, traced title to a common source, Ashley Williams, plaintiff's grandfather. Plaintiff proved title and possession in Ashley Williams, and his heirship through Caleb Williams, his father, and on this evidence had a recovery for a one-fifth interest in the property sued for. The defendant offered to prove a parol partition between the widow and children of Ashley, by which the land sued for was assigned to Minerva Pullen, an aunt of plaintiff, subsequent possession by her under an exclusive claim of ownership for more than the period of statutory limitation, and traced his title back to her through a number of mesne conveyances. The court sustained the plaintiff's objection. This ruling, repeated several times during the progress of the trial, constitutes the subject of the principal assignments of error. We gather from the briefs and argument of counsel that the rulings complained of proceeded upon one or the other of two theories: (1) That the statute of frauds stood in the way of the parol partition; (2) that the witnesses called to prove the partition and subsequent possession under it by the parties to it were incompetent, because pecuniarily interested in the result of the suit, and the facts to which it was proposed to have them testify were transactions with Caleb Williams, whose estate was interested in the result. Code 1907, § 4007.

The case of Yarborough v. Avant, 66 Ala. 526, seems to recognize, inferentially at least, that a parol partition of lands, followed by possession, continued for so long a time that the statute of limitation operates as a bar, vests in the co-tenants legal title to the parts assigned to them respectively. At the common law a voluntary partition of lands could be made by parol between tenants in common. Judge Freeman states that according to a slight preponderance of American cases, and a decided majority of the English authorities, the statute of frauds now interposes an insuperable obstacle to a valid parol partition. In Woodhull v. Longstreet, 18 N. J. Law, 414, the Supreme Court of New Jersey, while intimating that it might possibly uphold a parol partition when sanctioned by longcontinued possession taken and held by virtue of it, denied the force of such partition when accompanied by possession for a period of five or six years, and portrayed the evils which, in its judgment, were likely to arise from encouraging parol partitions. In New York, Chancellor Kent said: "A parol division, carried into effect by possessions taken according to it, will be sufficient to sever possessions, as between tenants in common whose titles are distinct, and where the only object of the division is to ascertain the separate possessions of each." Jackson v. Harder, 4 Johns. (N. Y.) 212, 4 Am. Dec. 262. In Mississippi, where the question was on the admissibility of certain evidence, the court used this language: "The only question, then, upon which the competency of this evidence depends, is whether it is competent to show a partition by parol between coparceners or tenants in common. And there can be no doubt but that such an agreement, when carried out by the parties taking possession in severalty, is valid and effectual to conclude the rights of the others against the respective parties so holding in severalty." Wildey v. Bonner's Lessee, 31 Miss. 652. In Pennsylvania, in an action for partition, the defendant pleaded that he and the plaintiff did not hold the land together, and this was the question at issue. The defendant offered parol evidence to show a parol partition, with subsequent possession by each of the part allotted to him by the other. The court was of opinion that the evidence ought to have been received. Ebert v. Wood, 1 Bin. (Pa.) 218, 2 Am. Dec. 436. In South Carolina, in a case where parol partition had not been [50 So. 939] consummated by possession taken and held in accordance therewith, the court said: "There is no doubt that, if actual possession had...