Orso v. Cater

Citation133 So.2d 864,272 Ala. 657
Decision Date29 June 1961
Docket Number1 Div. 927
CourtSupreme Court of Alabama
PartiesZ. C. ORSO, Jr. v. J. B. CATER et al.

Garet Van Antwerp, III, Van Antwerp & Rector, Mobile, for appellant.

Grady W. Hurst, Jr., Chatom, for appellees.

MERRILL, Justice.

This appeal is from a final decree holding complainants to be the owners of certain described lands and ordering respondent to pay $213.04 as damages for trespass and cutting timber on the lands.

The bill of complaint prayed that an injunction issue against appellant, restraining him from cutting or removing any timber from the lands, and prayed that title to the lands be declared to be in complainants, that appellant's deed be removed as a cloud on title of appellees, and for general relief.

And injunction was issued when the bill was filed, but no motion was made to dissolve. Demurrer to the bill having been overruled, an appeal was taken to this court. The only grounds of demurrer argued in brief on that appeal were that the lands were not sufficiently described in the bill. We affirmed the decree overruling the demurrer. 268 Ala. 130, 105 So.2d 108.

The case was then tried on the merits and the decree was in favor of the complainants.

The complainants are J. B. Cater, who claims a life interest in the lands, and his son, J. F. Cater, who claims the fee, subject to his father's life estate.

The lands in question were patented in 1901 to Thomas Bradford, who died around 1911. His heirs lived on the land or nearby. J. B. Cater, 90 years of age, testified that William Bradford, a son of Thomas Bradford, had borrowed $100 from him to pay a fine, and finally, between 1911 and 1913, William Bradford and all the other heirs of Thomas Bradford executed a deed to the property and delivered it to him. He testified that the deed was never recorded and was lost. His safe at his store was burglarized in 1916 and his store building burned in 1934, and he kept his papers at the store.

J. B. Cater began assessing and paying taxes on the lands in 1914, and he or his sons have continued to pay the taxes since that time. In 1926, J. B. Cater deeded the property to his wife, and when she died in 1946, her title vested in her sons, J. F. and W. F. Cater, subject to her husband's life estate. W. F. Cater later conveyed all of his interest to his brother, J. F. Cater.

The respondent, Orso, secured a deed from William Bradford and the other heirs of Thomas Bradford in January, 1957. He immediately went upon the land and started cutting timber. The original bill was filed and he was enjoined from cutting the timber.

At trial, complainants claimed title under two theories, first, the lost deed executed in 1913 by the Bradford heirs, and second, exclusive assessment and payment of taxes and possession of the land from 1914 to the date of the suit was filed in 1957.

Appellant defendant by denying the lost deed, denying the possession by appellees and claimed to be an innocent purchaser for value. The trial court found the issues in favor of complainants. Counsel for appellant on this appeal did not participate in the trial in circuit court.

Much discussion is made brief of the lost deed, but we lay aside that question, because the decision here can be rested on the second theory advanced by appellees.

The evidence is without dispute that William Bradford stayed on the land during most of the time from 1913 until 1957. He was away two years in 1916 and 1917 when he went to Ohio, but when he returned he moved back on the property.

The main question in the case is the status of William Bradford's occupancy of the land. The appellant contends that Bradford owned the land or a part of it and his occupancy was the occupancy of all the heirs of Thomas Bradford. Appellees contend that his occupancy was that of a tenant and their evidence tends to show that they have assessed and paid taxes on the land for 45 consecutive years preceding the trial; that all the Bradford heirs moved off the property except William, who remained as a tenant; that J. B. Cater cut timber off the land on numerous occasions and had it surveyed twice; he gave a mortgage on it in 1920, deeded it to his wife in 1926, posted the land during 1950, gave William Bradford permission to move part of the house he was living in off the land, leased hunting rights in 1956, leased a boat landing, and offered several witnesses who testified that William Bradford had told them the land was Mr. Cater's and that he was living there with Mr. Cater's permission. It was also shown that the land was reputed in the community to belong to the Caters.

Appellant produced witnesses showing that the land was known as the Bradford land, that they used boats by permission of William Bradford, got hunting and fishing permission from William Bradford; that William Bradford occupied and farmed part of the land for over 20 years, kept a few head of stock on it, and they did not know the Caters claimed the land. Some relatives of William Bradford testified on each side, but William Bradford did not testify although the testimony showed that he was living in Mobile at the time of trial.

Whether William Bradford was a tenant of the Caters was a question of fact and it was resolved in favor of appellees by the court, after seeing and hearing more than 32 witnesses testify. Applying the usual rule in such cases, the equity court's conclusion on the facts has the force and effect of a jury verdict. We see no plain or palpable error in the decision on the question of fact. Spradling v. May, 259 Ala. 10, 65 So.2d 494.

But appellant argues that appellees cannot claim adverse possession under the statute because they have no color of title if the alleged lost deed is not recognized. Assuming, arguendo, that this be correct, complainants did have color of title from the deed of J. B. Cater to his wife, which was executed and recorded in 1926. They had paid taxes from 1914 to 1957, or 31 years after color of title was recorded and before suit was filed. This is sufficient to support a claim of adverse possession under Tit. 7, § 828, Code 1940.

It is elementary that, as between landlord and tenant, possession of the tenant is possession of the landlord. Stephens v. Stark, 232 Ala. 485, 168 So. 873. Since William Bradford's possession was that of the Caters, it could not be the possession of the heirs of Thomas Bradford. Therefore, we have the Caters in possession of the lands for 43 years and they were the only people listing and paying taxes on the lands for that period.

The rule of prescription also applies. For more than twenty years prior to appellant's claim, appellees had been in possession without recognition of right or admission of liability in anyone else. This operates as an absolute rule of repose. Morris v. Yancey, 267 Ala. 657, 104 So.2d 553, and cases there cited.

We mention briefly appellant's defense that he was an innocent purchaser for value when he secured the deed from the Bradford heirs in 1957. We have held that to constitute one a bona fide purchaser without notice and entitle him to the protection against a prior equity or conveyance, it is essential (1) that he is the purchaser of the legal as distinguished from an equitable title; (2) that he purchased the same in good faith; (3) that he parted with value as a consideration therefor by paying money or other thing of value, assuming a liability or incurring an injury; (4) that he had no notice, and knew no fact sufficient to put him on inquiry as to complainant's equity, either at the time of his purchase, or at or before the time he paid the purchase-money, or otherwise parted with such value. Holgerson v. Gard, 257 Ala. 579, 60 So.2d 427, 33 A.L.R.2d 1315; Larkins v. Howard, 252 Ala. 9, 39 So.2d 224, 7 A.L.R.2d 541.

According to the testimony of several witnesses, the property in question was worth between $5,000 and $6,000. Appellant said he paid $375 for his deed while one witness, William Bradford's daughter, with whom he lived, testified that William Bradford did not receive any money for his deed to appellant. It was questionable that appellant was a purchaser...

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16 cases
  • Ex parte Green, No. 1071195 (Ala. 4/9/2010), 1071195.
    • United States
    • Supreme Court of Alabama
    • April 9, 2010
    ...or possession in fact, exists when the thing is in the immediate occupancy of the party, or his agent or tenant ....'"); Orso v. Cater, 272 Ala. 657, 660, 133 So. 2d 864, 867 (1961) (citing Stephens v. Stark, 232 Ala. 485, 485, 168 So. 873, 874 (1936)) ("It is elementary that, as between la......
  • Ex Parte Johnnie Mae Alexander Green Et Al.(in Re Frank Stokes, 1071195 and 1071204.
    • United States
    • Supreme Court of Alabama
    • April 9, 2010
    ...or possession in fact, exists when the thing is in the immediate occupancy of the party, or his agent or tenant....’ ”); Orso v. Cater, 272 Ala. 657, 660, 133 So.2d 864, 867 (1961) (citing Stephens v. Stark, 232 Ala. 485, 485, 168 So. 873, 874 (1936)) (“It is elementary that, as between lan......
  • Woodland Grove Baptist Church v. Cemetery
    • United States
    • Supreme Court of Alabama
    • April 28, 2006
    ...actions in which the plaintiff shows that he or she is in peaceable, rather than scrambling, possession of the property. Orso v. Cater, 272 Ala. 657, 661, 133 So.2d 864, 868 (1961) ("It is true that the [plaintiff] cannot recover under the statute unless his proof shows his peaceable posses......
  • Vickers v. Vickers, 1 Div. 48
    • United States
    • Supreme Court of Alabama
    • August 30, 1962
    ...Co. v. Jones, 213 Ala. 656, 106 So. 172; Beasley-Bennett Electric Co. v. Gulf Coast Chapter, etc., Ala., 134 So.2d 427; Orso v. Cater, 272 Ala. 657, 133 So.2d 864. From the filing of this case in circuit court, up to and including its submission here, the name of the complainant-appellee ha......
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