Ritchey v. Underwood

• Citation: 479 So.2d 1223
• Parties: Albert E. RITCHEY, Sr., as Trustee of the A.E.R. Family Trust, William C. Taylor and Ronald Bingham v. Frances L. UNDERWOOD. 84-3.
• Decision Date: 04 October 1985
• Court: Supreme Court of Alabama

Page 1223

479 So.2d 1223

Albert E. RITCHEY, Sr., as Trustee of the A.E.R. Family Trust, William C. Taylor and Ronald Bingham v. Frances L. UNDERWOOD.

84-3.

Supreme Court of Alabama.

Oct. 4, 1985.

Rehearing Denied Dec. 6, 1985.

Robert A. Wills, Bay Minette, for appellants.

Samuel N. Crosby of Stone, Partin, Granade & Crosby, Bay Minette, for appellee.

HOUSTON, Justice.

This is a statutory action in the nature of ejectment. The testimony was presented ore tenus to the court sitting without a jury. The trial court ruled for the defendant and gave no specific grounds for its ruling. The plaintiffs appeal.

Plaintiff William C. Taylor and plaintiff Ronald E. Bingham each claims title to an undivided one-fourth interest in Lot 56 in Gulf Beach Resubdivision "A" in Baldwin County, Alabama, through a quitclaim deed dated February 12, 1981. Plaintiff Albert E. Ritchey, Sr., as trustee for A.E.R. Family Trust, claims title to the remaining undivided one-half interest in Lot 56 by a statutory warranty deed dated June 28, 1984. The Ritchey deed was executed a year and ten months after the ejectment action was filed. John W. Underwood, the deceased husband of Frances L. Underwood, the defendant, purchased Lot 56 at an ad valorem tax sale in 1955. After John W. Underwood's death, a tax deed was issued naming him a grantee. The defendant Underwood is the sole beneficiary and devisee under the will of her husband. She claimed as an affirmative defense that she had adversely possessed the property described in the complaint with color of title in the form of a tax deed dated September 19, 1965, from the date of said deed to the date of the filing of her answer.

In an action in the nature of ejectment, plaintiffs must recover on the strength of their own title and not on the weakness of their adversary's title. Watson v. Spence, 258 Ala. 371, 62 So.2d 919 (1953).

In a statutory action in the nature of ejectment, a plaintiff may recover by showing title from a grantor in possession, or superior title from a common source, or by an unbroken chain of title from the government. Atlas Subsidiaries of Florida, Inc. v. Kornegay, 288 Ala. 599, 264 So.2d 158 (1972). We have searched the record and find no evidence showing that the plaintiffs are claiming title from a grantor in possession; nor was evidence showing an unbroken chain of title from the government introduced. The plaintiffs sought to recover by showing better title than Underwood through a common source.

"Where proof of title back to a common source of title is made in an ejectment action this is generally recognized as being sufficient. The following appears in 28 C.J.S. Ejectment § 23, page 874:

" 'Since neither party in an action of ejectment can deny the title under which he claims, it follows as a general rule that, where both parties assert title from a common grantor, plaintiff is not required to go back of the common source, but it is sufficient if he shows a better title than defendant through that source.' "

Atlas Subsidiaries of Florida, Inc. v. Kornegay, supra.

Plaintiffs claim that Gulf Beach Land and Development Company (Gulf Beach) was plaintiffs' and Underwood's common source of title. The first deed in plaintiffs' chain of title was from Gulf Beach to Boykin Investments, Inc. (Boykin), and was dated September 9, 1974. In this deed certain lots in Resubdivision "A" were specifically described. Lot 56, which is the lot in question, was not described. Plaintiffs claim that Lot 56 passed to their...