Porter v. Henderson

• Decision Date: 17 June 1920
• Docket Number: 7 Div. 46,46A
• Citation: 204 Ala. 564,86 So. 531
• Parties: PORTER v. HENDERSON.
• Court: Alabama Supreme Court

86 So. 531

204 Ala. 564

PORTER v. HENDERSON.

7 Div. 46, 46A

Supreme Court of Alabama

June 17, 1920

Rehearing Denied Oct. 21, 1920

Appeal from Circuit Court, Talladega County; Hugh D. Merrill, Judge.

Bill by W.D. Henderson against Essie C. Porter. From the decree rendered, Essie C. Porter appeals, with cross-appeal by W.D Henderson. Reversed and remanded on direct appeal.

Riddle & Riddle, of Talladega, for appellant.

Knox Acker, Dixon, & Sims, of Talladega, for appellee.

THOMAS J.

This is a cross-appeal from a decree confirming the report of the register on a reference. No question of law is involved--only the ascertainment of a question of fact. Exceptions were flied by both complainant and respondent to the report of the register.

Under subdivision 1, § 5955, Code, the finding of a register based on oral examination of witnesses is presumptively correct and, if there is a reasonable doubt as to whether it is correct, such finding will not be disturbed. This rule obtains as to review of the register's finding by the chancellor and by appellate courts. Bidwell v Johnson, 195 Ala. 547, 70 So. 685; A., T. & N. Ry. Co. v. Aliceville Lbr. Co., 74 So. 441, 448; Clifford v. Montgomery, 81 So. 551, 552.

We have examined the record and are of the opinion that the sum reported by the register as a reasonable compensation to be paid complainant's solicitors for their services was supported by the evidence and should be deducted from the proceeds of the sale of the unimproved land for reasons hereafter indicated.

The amount of the reasonable rental value of the property as unimproved, fixed at $40 since August 16, 1911, was at the rate of $5 per year; and there was evidence on which this finding may rest. However, the respondent Porter should not be charged that full sum, since a cotenant is entitled to the use of the whole property until there is an ouster or exclusion of the cotenant from the use and enjoyment of his interest in the property. The mere fact that a cotenant in possession has taken all the rents and profits does not show ouster. Winsett v. Winsett, 83 So. 117; Coleman v. Coleman, 173 Ala. 282, 55 So. 827; Fielder v. Childs, 73 Ala. 567; Williams v. Avery, 38 Ala. 115; Kidd v. Borum, 181 Ala. 144, 61 So. 100, Ann.Cas.1915C, 1226; McGuire v. Van Pelt, 55 Ala. 344; Patten v. Swope, 85 So. 513; McCaw v. Barker, 115 Ala. 543, 22 So. 131. The exclusion of the complainant from the use of his undivided interest in the unimproved lots could not extend beyond the respective dates of delivery to Henderson of the two deeds of date September 30, 1913, and September 5, 1916. Porter was only chargeable with two-thirds of the $5 yearly rental for the years of 1917 and 1918, and to the date of the reference--July 21, 1919, when, Dr. McLauren testified, he had the lands rented and would be there "three years this fall." There was error in charging respondent with the whole sum of $40 as rent since August 16, 1911. The opinion on former appeal demonstrated that Henderson was not entitled to the enhanced value of the lands by reason of respondent's improvements, but only to the value of the unimproved lots. The same reasons are of force as to the increased rentals on account of respondent's improvements, and the register correctly so found.

An examination of the evidence discloses that the finding of the register as to the value of the improvements on said property amounting to $500 was supported by evidence given orally. We will not disturb this finding.

The compensation of $10 to be paid the register, as commissioner, for the sale of said property, was reasonable, and will be collected as other items of costs.

There was no error in reporting to the court the amount of the accrued taxes on the property for the year ($10.20), that the property be sold free of that incumbrance. It should have been apportioned, one-half to the improvements and deducted from the amount of $500 allowed and set apart to respondent for such improvements thereon. The other one-half of this tax ($5.10 and interest) will be apportioned, respectively, one-third to respondent's moiety of the sale of her one-third sale of her interest in the unimproved lot, and two-thirds to be deducted from the proceeds of the sale of complainant's two-thirds interest in the unimproved lots or its ascertained value.

As to the costs of the court and apportionment thereof, the register had nothing to do, the same being a matter of judicial determination...