Smith v. Duvall

• Decision Date: 14 February 1918
• Docket Number: 3 Div. 323
• Citation: 78 So. 803,201 Ala. 425
• Parties: SMITH et al. v. DUVALL et al.
• Court: Alabama Supreme Court

78 So. 803

201 Ala. 425

SMITH et al. v. DUVALL et al.

3 Div. 323

Supreme Court of Alabama

February 14, 1918

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill in equity by James Duvall and another against Virginia Smith and another for partition. Decree for complainants, and respondents appeal. Reversed, rendered, and remanded.

J.R Thomas and Hill, Hill, Whiting & Stern, all of Montgomery for appellants.

Tilley & Elmore and W.A. Gunter, all of Montgomery, for appellees.

THOMAS J.

This suit in equity was for partition or sale for division among joint owners. It must be conceded that if it be a case for a sale of realty for division among joint owners, a reversal must be had for that all the parties in interest are not before the court. If the property is not held by joint owners, this result would not follow--at least on this ground.

The answer of respondents discloses a state of facts showing there was no joint ownership between the complainants and the respondents as to what we will call the "east end" of the lot in question, and enters a disclaimer as to the "west end" thereof. The averment is:

"That on, to wit, April 27, 1871, said property [described in the bill] was purchased by James Duvall and Levi Duvall jointly from Albert and Mary Elmore; that thereafter, and more than 20 years ago, the joint owners of said property divided and partitioned said property between themselves, and in said division the said Levi Duvall was allotted and accepted as his portion of said property the west one-half of said property, that is, the back half of said lot, and that the said Levi Duvall went into possession of the said west one-half of said property upon the said division, and continued to live on and claim the same as his portion of said property until his death in August, 1889; and that after said division, the said Levi Duvall never made any claim to any interest in or to any part of the east one-half of said lot; and that upon said division and partition between the joint owners of said property, more than 20 years prior to the filing of this bill of complaint in this cause the said James Duvall and his wife, Nancy Duvall, was allotted and accepted upon said division the east one-half of said lot, that is, the front half of said lot; and that upon said division the said James Duvall and his wife, Nancy Duvall, went into the possession of the said east one-half of said lot; and that the said James Duvall and his wife, Nancy Duvall, remained in open, notorious, peaceable, exclusive, and adverse possession, under claim of ownership of said east one-half of said lot, from said time down to the death of James Duvall, which occurred during the year of, to wit, 1893, and that after the death of the said James Duvall, his wife remained in such possession of said east one-half of said lot continuously until she died, on, to wit, December 11, 1916, since which time your respondents, who are all of her heirs at law and next of kin of said James Duvall and Nancy Duvall, have been in such possession of said east one-half of said lot. Respondents further aver that during the life of the said Levi Duvall, the said James Duvall and Nancy Duvall allowed and permitted the said Levi Duvall to use, to wit, a six-foot alleyway from the lot of Levi Duvall to Bainbridge street on and over the extreme south side of the said east one-half of said lot as a passageway to get from the said lot owned by the said Levi Duvall to the street."

Respondents further claim title to the east half of said lot under the rule of prescription and of laches. It is then necessary to determine whether there is a joint ownership in the east half of the lot by complainants on the one hand and respondents on the other for an ascertainment of whether all proper parties are before the court for a final decree on the merits of the bill as one for the sale of joint properties for division among the joint owners thereof.

Aside from the testimony of the witnesses, the record shows a purchase of the lot by the ancestors, James and Levi Duvall, of parties at interest here on April 28, 1871; that in 1878 James Duvall assessed lot 1, square 7, Goldthwaite plat, to himself; and for that same year Levi Duvall assessed the west half of lot 1, square 7, Goldthwaite plat, to himself; that for 1881, 1882, 1883, and 1884, the respective assessments were made by said respective owners, being thus: "James Duvall, E. 1/2 of lot 1, Sq. 7, Goldthwaite plat, $300," and "Levi Duvall, W. 1/2 of lot 1, Sq. 7, Goldthwaite plat, $200." Separate assessments by the respective brothers of these separate respective properties were preserved each year to the time of their deaths--Levi Duvall dying, one witness states, on June 21, 1891; and after their deaths, 1896, 1900, to their respective estates; and 1901, 1903, 1904, to their respective heirs; and the two lots assessed to Nancy Duvall, respondents' ancestor, for the years 1906 to 1915, inclusive. Though James Duvall made a deed to his wife, Nancy, in 1881, to an undivided one-half interest, yet in the light of the whole evidence a parol partition of the lot purchased by James and Levi Duvall from Elmore is shown to have been made by and between these brothers, and thereafter they so listed for taxes their respective moieties or allotments as individual property. This parol partition of the lot between James and Levi Duvall occurred probably during the latter part of 1877, when the lands were assessed to "James and Levi Duvall, lot 1, Sq. 7, Goldthwaite plat, $450"; or before the assessment was made for 1878 as follows: "James Duvall, lot 1, Sq. 7, Goldthwaite plat, $500; Levi Duvall, west half of lot 1, Sq. 7, Goldthwaite plat, $300"; or before they assessed the same in 1881 as follows: "James Duvall, E. 1/2 of lot 1, Sq.

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