Sayre v. Dickerson, 1 Div. 130

• Court: Alabama Supreme Court
• Writing for the Court: COLEMAN; LIVINGSTON
• Citation: Sayre v. Dickerson, 278 Ala. 477, 179 So.2d 57 (Ala. 1965)
• Decision Date: 30 September 1965
• Docket Number: 1 Div. 130
• Parties: Katie SAYRE v. Grace Louise DICKERSON.

Page 57

179 So.2d 57

278 Ala. 477

Katie SAYRE v. Grace Louise DICKERSON.

1 Div. 130.

Supreme Court of Alabama.

Sept. 30, 1965.

J. Terry Reynolds, Jr., and Wm. Lauten, Mobile, for appellant.

Kilborn, Darby & Kilborn, Mobile, for appellee.

COLEMAN, Justice.

For prior decision on this appeal denying motion to strike demand for oral argument, see Sayre v. Dickerson, 275 Ala. 371, 155 So.2d 327.

The respondent appeals from a decree, in equity, whereby the court gave effect to an agreement allegedly made by the parties in settlement of a suit which arose out of conflicting claims of ownership of a parcel of land sometimes referred to as Point Legere or the Point, on Dog River.

The case may be more easily understood by reference to the following map.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The area shown is part of the land embraced in the map of a subdivision recorded in Map Book 3 at page 530. The parties allege that, in 1937, the map of the subdivision was filed for record by 'A. H. Legere,' as owner. His title is not disputed. Both parties claim through him.

The recorded map of the subdivision shows lots numbered from 1 to 5, both inclusive, and from 8 to 11, both inclusive, but does not show any lot numbered 6 or 7. The Dr. S. H. Stephens Lot is not numbered. The words Parcel No. 1 and Parcel No. 2 do not appear on the recorded map. The line running from north to south between the two parcels does not appear on the recorded map. The map here shown is the result of a survey made pursuant to the alleged agreement of the parties in the instant case, and the north-south line and the words Parcel No. 1 and Parcel No. 2 were placed on the map according to the survey. On the recorded map of the subdivision, the entire area embraced in Parcel No. 1 and Parcel No. 2, is shown simply as an unnumbered lot bounded by the Dr. S. H. Stephens Lot, the 20' lane, lot 8, and Dog River.

In 1936, Legere conveyed to Seldon H. Stephens the Dr. S. H. Stephens Lot, by a deed which described the boundary by courses and distances.

Complainant alleges, and respondent neither admits nor denies, that, after the recording of the map of the subdivision in 1937, complainant acquired Lot 5; various other persons from time to time acquired the other numbered lots shown on the map; in 1947, complainant acquired the Dr. S. H. Stephens Lot; and Legree still owned the large unnumbered lot which is the area shown as Parcel No. 1 and Parcel No. 2 on the map set out in this opinion.

Complainant alleges that by deed dated July 3, 1947, she purchased from Legere, for $1,000.00, the land embraced in Parcel No. 1 and Parcel No. 2. A copy of the deed in made Exhibit B to the bill of complaint. The description in the deed is as follows:

'. . . the following described real property located in the City and County of Mobile, State of Alabama:

'Lot No. 7 in Point Legere Subdivision as the same is shown on a plat recorded in Map Book No. 3, page 530, Probate Records of Mobile County, Alabama.'

Complainant alleges:

'* * * Through error or inadvertance the unnumbered lot shown on Exhibit A. fully described in paragraph 5 and referred to as the 'Point' was described in the deed Exhibit B as Lot 7 of the subdivision.'

Respondent denies that complainant bargained to buy the lands embraced in Parcel No. 1 and Parcel No. 2; admits that Legere did sell to complainant 'the lands referred to in the deed . . . described as Lot seven . . .'; denies that the lands conveyed were described as Lot Seven through error or inadvertence; and says that the land conveyed did not extend east so as to include, and Legere did not intend to convey, the land embraced in Parcel No. 1 and Parcel No. 2.

By deed dated November 23, 1949, Legere conveyed to respondent "any other real property in which the grantor herein has any interest whatever and which property is located in Mobile County, Alabama."

Legere died in 1950 leaving a will by which he devised to respondent all his property, except some property not here pertinent.

In brief outline the controversy is this. Complainant claims to own all of Parcel No. 1 and Parcel No. 2 by virtue of the July 3, 1947, deed. She seeks to reform the description in the deed and to quiet her title. Respondent says the July 3, 1947, deed did not convey all of both parcels to complainant, and that respondent, as successor to Legere, owns all of both parcels, or the greater part of them. It is apparent that the controversy results from the description in the deed referring to Lot No. 7, and the absence of any lot so numbered on the recorded map of the subdivision.

The case was set for hearing August 28, 1962. The transcript of the testimony taken on the hearing commences with the statement of counsel that 'The parties have reached a settlement.' Then, in open court, counsel dictate or recite the terms of the settlement.

The agreement, in short, is that a survey shall be made, to begin at the southeast corner of the Dr. S. H. Stephens Lot, thence run north along east line of said lot 130 feet, thence run east parallel with north line of Section 17 to the average tide line of Dog River. At the middle point of the line from Dr. S. H. Stephens Lot to Dog River, a line is to be run north and south to the river. All of the disputed land east of the north-south line will be the property of respondent and all west of the line will be property of complainant. The agreement, as written by the reporter and signed by the trial judge contains the following recitals:

'6. Katie Sayre waives for herself, her heirs, successors and assigns all right of ingress or egress which she may now have and any right she may now have or hereafter have to condemn a right of way for the purpose of ingress and egress over and across the property above described which shall be and become the sole property of Grace Dickerson, the waiver of said right expressly being a material part of this agreement and settlement, it being the intent hereof that the said Katie Sayre expressly disclaims for the present or future any right of ingress or egress to and from the lands to be conveyed to her or right to condemn any right of way to or from said lands or right of way of necessity thereto, or therefrom over and across any part or portion of the land to belong to the said Grace Dickerson.

'7. Costs of court to be taxed one-half to Grace Dickerson and one-half to Katie Sayre.

'8. The court is to partition the land pursuant to this agreement and the parties are in addition to the Court's partition to exchange deeds to the respective parcels as set out above.

'If any party should fail to execute the deeds required by this agreement within thirty days of the Court's decree partitioning the land, then the Register of this Court will be directed to execute deeds on behalf of the parties so refusing within thirty days of the date of the Court's decree or within any time after the Court's decree. Final decree of the Court in the cause shall expressly deal with the waiver of the right of ingress and egress to and from the property. The decree of the Court shall effectuate the provisions of this agreement.'

Apparently, the surveyor agreed upon by the parties completed the survey and filed a map dated September 17, 1962. The map set out in this opinion is taken from the map dated September 17, 1962. By the agreement, Parcel No. 1 goes to respondent, subject to the agreement, and Parcel No. 2 goes to complainant.

On September 27, 1962, counsel, who had hitherto represented respondent, filed a written withdrawal from the cause alleging that respondent has been fully advised and that the withdrawal 'is made at her request.'

On October 5, 1962, through new counsel, respondent filed motion to set aside the submission, or suspend rendition of decree, or 'to revoke the memorandum of settlement allegedly' made August 28, 1962.

As grounds of the motion, respondent says that she objects to and is not satisfied with the agreement; that it deprives her of property without due process; that the agreement was made 'over her protest and without her consent or approval'; and that, if the agreement is permitted to stand, she and her successors will be unable to enter her property except by air or water, and that such condition would render her property worthless.

On October 26, 1962, hearing was had on the motion and on December 7, 1962, the court rendered a decree giving effect to the agreement of August 28, 1962.

Respondent appeals from the decree of December 7, 1962, and assigns its rendition as error.

Appellee moves to dismiss the appeal on three grounds.

First, appellee says that there has been no appeal from the 'decree of August 28, 1962, and said decree has become final, more than six months having elapsed since the date thereof.'

The paper of August 28, 1962, is entitled:

'MEMORANDUM OF SETTLEMENT BETWEEN PARTIES'

As we read it, it sets out the terms of an agreement and is not a decree. The agreement is 'ratified, adopted, affirmed' by the court, but, however final it may be as an agreement, it looks to the subsequent rendition of a decree and is not itself a decree. We do not think it is in such form that an appeal could be taken from it, and hold that the first ground of appellee's motion to dismiss is not well taken.

Second, appellee says that the appeal is an appeal from a consent decree and a consent decree will not support an appeal, citing Payne v. Graham, 20 Ala.App. 439, 102 So. 729, where the court said: 'A consent decree or judgment will not support an appeal.' The statement was made in answer to the argument that a certain Mississippi decree had been erroneously admitted into evidence. The Court of Appeals pointed out that '. . . this decree was never offered in evidence.' Whether a decree, which was not offered in evidence, would or would not support an appeal was wholly unnecessary to the decision and is dictum.

Appellee cites also Heath v....