Palmer v. Sims

• Citation: 57 So. 704,176 Ala. 59
• Parties: PALMER v. SIMS ET AL.
• Decision Date: 17 February 1912
• Court: Supreme Court of Alabama

57 So. 704

176 Ala. 59

PALMER v. SIMS ET AL.

Supreme Court of Alabama

February 17, 1912

Appeal from Chancery Court, Chambers County; W. W. Whiteside Chancellor.

Action by James A. Sims and others against Mary Jo Erwin Palmer and others for partition of certain real estate. From a decree ordering partition, Mary Jo Erwin Palmer appeals. Affirmed.

Barnes & Denson, for appellant.

Hines &amp Fuller, for appellees.

SAYRE J.

The parties to this bill for partition are the brothers and sisters, nephews and nieces, heirs at law of Susan Erwin, and claim under her. All parties, save the appellant, Mary Jo Erwin Palmer, are agreed that a decree for partition was proper. Mrs. Palmer claims the entire fee under a parol gift from her aunt Mrs. Erwin, and 10 years adverse possession continuously held subsequent to the gift. The evidence is meager, particularly so that offered by the contesting defendant in support of her alleged title. Her evidence takes the shape of a showing, admitted subject to legal exceptions in which she and another witness state that Mrs. Erwin some time, a very short time it may be, before her death, which occurred some 15 or 16 years ago, gave the land to her, and that subsequently J. H. Erwin, husband of the former owner remained in possession, both before and after his wife's death, holding adversely for Mrs. Palmer until his death, which occurred two or three years before the bill was filed. Prior to her death Mrs. Erwin lived on the place with her husband, and, since the death of the latter, it has been held and claimed by Mrs. Palmer. This alleged parol gift, unless followed by 10 years adverse possession, was ineffectual to pass title. The statement as to the nature of defendant's title and holding is made in these words: "The land in controversy was given to said Mary Jo Palmer by Mrs. Erwin in her lifetime, and J. H. Erwin, before the death of Mrs. Erwin, took charge of the land as the agent of Mary Jo, and not under his right under the statute as husband of Mrs. Erwin, after her death, and, since J. H. Erwin took possession as agent, said Mary Jo has been in the open, continuous, notorious, adverse possession of said land, claiming to own the same, and has been in such adverse possession for more than 10 years before the filing of this suit." There is, on the other hand, evidence going to show that J. H. Erwin after his wife's death was claiming to hold in virtue of his...