Owens v. Betts

• Decision Date: 01 November 1928
• Docket Number: 8 Div. 7.
• Citation: 122 So. 811,219 Ala. 604
• Parties: OWENS v. BETTS ET AL.
• Court: Alabama Supreme Court

122 So. 811

219 Ala. 604

OWENS v. BETTS ET AL.

8 Div. 7.

Supreme Court of Alabama

November 1, 1928

Rehearing Granted May 30, 1929.

Rehearing Denied June 20, 1929.

Appeal from Circuit Court, Madison County; R. C. Brickell, Special Judge.

Bill to quiet title by Ozzie Owens against Lizzie Betts and Amelia Moore, with cross-bill by respondents. From a decree for respondents, complainant appeals. Reversed and rendered on rehearing.

R. E Spragins and S. H. Richardson, both of Huntsville, for appellant.

David A. Grayson, of Huntsville, for appellees.

BROWN J.

This bill was filed by appellant on February 4, 1927, under the statute, alleging that the complainant was in the peaceable possession of the property described in the bill, claiming to own the same in her own right, and that the defendants deny or dispute complainant's title, and claim title to said property or an interest therein, and that no suit is pending to test the validity of such title, claim, or imcumbrance and calling on the defendants to set forth and specify what title, claim, or interest they have in said property, and how and by what instrument the same was derived or created, and praying that complainant's title be quieted, and for general relief.

The defendants answered, denying in general terms the averments of paragraph 2 of the bill, alleging that complainant was in peaceable possession of the property; and in a cross-bill following the answer, alleged that the defendant Amelia Moseley, who is also known as Mealey Moseley, was married to Jack Moseley during the Civil War; that they lived together as husband and wife from the time of the marriage until a few months of the time when Jack Moseley entered into a pretended or bigamous marriage with Sallie Robinson, afterwards known as Sallie Moseley; that the other defendant, Lizzie Moseley Betts was born to the said Jack Moseley and Amelia Moore prior to the year 1868; that said Jack Moseley recognized the said Lizzie Moseley Betts as his daughter; that Jack Moseley was the owner of the property in question, and the defendants as the wife and daughter of said Jack Moseley are owners of the property; that the said Ozzie Owens, the complainant, has taken charge of the personal property of the said Jack Moseley and has either disposed of it by selling it or has it in her possession.

The cross-bill prays that any claim which the said Ozzie Owens may make to said property be adjudicated and decreed to be unfounded, and that cross-complainants own said property "and that the Court place the cross-complainants in possession thereof; that the Court will issue all proper writs necessary to dispossess the said Ozzie Owens; that the said Ozzie Owens be required to file an inventory of all the personal property that she found in the building, whether said property is deemed to belong to the said Jack Moseley or the said Sallie Robinson," etc.

The complainant answered the cross-bill denying the alleged marriage between Amelia moore and Jack Moseley and that Lizzie was the daughter and heir of Jack Moseley.

On final submission on pleadings and proof, the circuit court denied relief to complainant, but granted relief to the respondents and ordered complainant to deliver possession of the premises to them, and upon her failure to do so that writ of possession issue to this end. That decree is the basis of this appeal.

Brief for appellees states that: "The undisputed facts in the case are as follows: at the time of the filing of the bill of complaint, the complainant was in the actual occupancy *** of the land or lot described in the bill of complaint; that she was the niece and only heir at law of Sallie Moseley who died shortly before the bill of complaint was filed, and who, at the time of her death, was in actual occupancy of the lot described in the bill of complaint, and had been occupying *** said lot continuously from the date of the death of Jack Moseley in 1913, up until the death of Sallie Moseley on the 17th day of January, 1927, partially keeping up repairs on the property *** and paying taxes on it during the entire period. *** Ozzie Owens was not in possession of the property peaceably or otherwise except as a trespasser." We take these statements as an admission that the complainant was in the actual possession of the property at the time the bill was filed, qualified by the assertion that in taking possession she was a trespasser, and we limit our consideration, so far as this phase of the case is concerned, to this assertion.

The evidence shows, without dispute, that the property in question belonged to Jack Moseley, a freedman, who occupied it with Sallie Moseley as his wife, up until the time of his death in 1913; that Sallie continued to occupy it as his widow, made needed repairs thereon, and assessed and paid the taxes up until her death on the 17th day of january, 1927. After the death of Sallie, complainant went into possession, claiming as Sallie's heir, and placed a sign on the property offering it for sale. The defendants were not then in possession of the property and had never been, and no one else had assumed possession of the property after the death of Sallie Moseley, until the complainant went into possession. Under these circumstances, it is clear that complainant in taking possession as the heir of Sallie Moseley violated the possession of no person, and therefore it cannot be affirmed that she was a trespasser.

The complainant's actual occupancy of the property being conceded, and being...