Palmer v. Rucker, 3 Div. 503

• Court: Supreme Court of Alabama
• Writing for the Court: PER CURIAM; HEFLIN; PER CURIAM; HEFLIN
• Citation: 289 Ala. 496,268 So.2d 773
• Parties: Nancy L. PALMER et al. v. Hilda RUCKER et al.
• Docket Number: 3 Div. 503
• Decision Date: 28 September 1972

Page 773

268 So.2d 773 289 Ala. 496 Nancy L. PALMER et al.
v.
Hilda RUCKER et al. 3 Div. 503. Supreme Court of Alabama. Sept. 28, 1972.
Rehearing Denied Nov. 9, 1972.

[289 Ala. 497]

Page 774

Edwin C. Page, Jr., Evergreen, for appellants.

J. B. Nix, Jr., Evergreen, for appellees.

PER CURIAM.

Hilda Rucker and others brought a bill, in equity, against Heustis J. Palmer and others in the Circuit Court of Conecuh County to quiet title to 90 acres of land located in the vicinity of the airport at Evergreen, Alabama. The bill, brought under Title 7, §§ 1109--1114 of the Code, avers that complainants, appellees here, are 'joint owners and tenants in common of the following described tract of land which is situated in Conecuh County, State of Alabama, to-wit: (the description follows) and are in the peaceful possession of said lands.' (Par. Added) The other requisite jurisdictional averments are present in the bill. The respondent, Heustis J. Palmer, an essential witness for the respondents-appellants, died after the final decree was rendered and before submission of this appeal, and the cause was revived as to his widow and executrix, Nancy L. Palmer, and as to his brothers and sisters, his heirs at law. Mr. Palmer made no disposition in his will of the lands here involved. From a decree adverse to them, respondents appeal.

Respondents, heirs of D. D. Palmer, Sr., also known as David D. Palmer, Sr., filed answers and cross bill denying that complainants had title to the land or that they [289 Ala. 498] had peaceable possession thereof. They claimed to own the property by descent cast from D. D. Palmer, Sr. who allegedly owned it as a part of a 245-acre tract, the land in controversy being the easternmost 90 acres of said tract. Respondents further alleged that the entire 245 acres had been divided in kind among D. D. Palmer's nine children on February 15, 1947, and that on the following September 22, 1947, they sold the timber on all the land in a court proceeding and divided the money among themselves. In the attempted division of the D. D. Palmer lands, the 90 acres claimed by complainants-appellees appear to have been allocated in three more or less equal parcels to Heustis J. Palmer, Stanley L. Palmer, and D. D. Palmer, Jr. Deeds for these parcels, as well as for the other six, were recorded in the Probate Office of Conecuh County on February 27, 1947.

Heustis J. Palmer, Rosa Palmer Cook Warren, Gloria Palmer, Mary Palmer, and Helen Palmer filed further answer and cross bill seeking a decree quieting title to the parcels conveyed to them, or their ancestor, in the 1947 division of land among the respondents. They averred further that they held title to the 90 acres claimed by the complainants by adverse possession and by prescription, and, as a further defense, charged the complainants with laches.

D. D. Palmer, III and James D. Palmer, joined by their mother, Jessie Palmer Rice, answered the bill by asserting their claim to the parcel deeded to their deceased father and husband in the 1947 division. Their cross bill prayed that said land be vested in them; or, in the alternative, if the court should award the 90 acres to complainants, that all of the nine division deeds made on February 15, 1947, be declared 'null and void for want of consideration' and the remaining land of the 245-acre tract be divided in kind among the heirs of D. D. Palmer, Sr., or, that not being possible, that the lands be sold for division.

Testimony was taken orally before the court under Equity Rule 56 and the trial court found: (1) That the respondent, Heustis J. Palmer, willfully testified falsely at the trial; (2) that respondents-cross complainants (appellants) had failed to establish title by adverse possession and were not entitled to relief; (3) that complainants (appellees) were entitled to relief under their bill; and (4) that D. D. Palmer, III, James D. Palmer, and Jessie Palmer Rice were entitled to the alternative relief prayed for in their cross bill (cancellation

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of the nine deeds of division). Thereupon, the trial court decreed on March 26, 1971, that title to the 90 acres described in complainants' bill be vested in them; it set aside all nine deeds made among the heirs of D. D. Palmer, Sr. on February 15, 1947; declared the remainder of the 245 acres to be vested in the respondents as tenants in common and gave them 60 days to effect a partition of said lands, and ordered said lands sold if not partitioned in the specified time.

Respondents-appellants applied for rehearing and charged as error each of the findings and orders of the court and called attention to the fact that the court had failed to rule on respondents' plea of laches. On May 12, 1971, the trial court set aside its decree and entered another which was, in substance, a reaffirmation of its former decree except that it found complainants not guilty of laches and deleted that portion of the former decree dealing with partition or subsequent sale for division of the remaining acreage.

The background of the controversy appears to be that on January 1, 1906, William Palmer conveyed 245 acres of land to Alfred Crum, Peter Palmer, and David D. Palmer. On November 1, 1915, Alfred Crum and others conveyed 137 acres of this land to David D. Palmer, and on the same day, David D. Palmer and the same other grantors, conveyed 90 acres to Alfred Crum in an apparent division of lands held as tenants in common.

[289 Ala. 499] On February 2, 1939, Alfred Crum conveyed by warranty deed his 90 acres to complainants-appellees who recorded their deed, assessed the land for taxes, and paid the taxes annually since that time. Complainants-appellees have lived away from Conecuh County and the State of Alabama for many years. William Raiford, complainants' father, leased a portion of the tillable land on the 90 acres to Cleveland Millender for the crop years 1944 and 1945, but Mr. Millender ceased to rent the land when Heustis J. Palmer asked him to pay rent to him. Evidence of further acts of actual possession on the part of complainants is sparse indeed, consisting chiefly of testimony about infrequent visits to the land, efforts to list it for sale with real estate agents in Montgomery and Evergreen, and efforts to employ counsel to clear up the dispute over title. Appellants concede, however, that the appellees have the superior record title to the land. Therefore, appellees' claim to possession must be based on that constructive or presumed possession which is an adjunct of ownership of the legal title.

Appellants, on the other hand, in addition to deeds of record constituting at least color of title and the payment of taxes since 1947, show a more or less complete record of possessory acts through the tenants of Heustis J. Palmer for a considerable period in excess of 20 years. There is testimony that at least a portion of the tillable land, about 30 acres of the 90, was rented out each year by Heustis J. Palmer since 1947; that Heustis J. Palmer made periodic visits to the land; and that Stanley Palmer, another of D. D. Palmer's children, while living on the adjacent 'Palmer lands,' cut wood and timber off the 90 acres. There is also testimony that the entire 245 acres were generally reputed in the community to be 'Palmer land' and witnesses have not known of anyone else claiming it.

When called as a witness, Heustis J. Palmer testified that he had not ever heard of Alfred Crum (his great uncle), had never known of Alfred Crum being around the lands in question, and knew nothing about a claim of ownership by Alfred Crum to any part of the lands. However, appellants' witness, Reverend Matthew Kelley, a neighbor who had lived in the vicinity for 53 years, testified that he had known Alfred Crum and that he was reputed to be the uncle of David D. Palmer, the father of Heustis J. Palmer. George Banks, another of appellants' witnesses, testified that he had lived in the general vicinity since 1932 and that he, too, had

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known Alfred Crum and that Alfred Crum was reputed to be related to the Palmers. Finally, Jessie Palmer Rice, a respondent-cross complainant and the widow of Heustis J. Palmer's brother, testified that she had known Alfred Crum and that he was referred to in the family as 'Uncle Alfred.'

Heustis J. Palmer also testified that he did not know Hilda Rucker, one of the appellees; but Hilda Rucker testified that at one time Heustis J. Palmer lived in her home in Cleveland, Ohio, as her guest for several...