Smith v. Persons

• Decision Date: 21 November 1968
• Docket Number: 5 Div. 824
• Citation: 285 Ala. 48,228 So.2d 806
• Parties: Green B. SMITH, Sr., et al. v. F. J. PERSONS.
• Court: Alabama Supreme Court

Page 806

228 So.2d 806

285 Ala. 48

Green B. SMITH, Sr., et al. v. F. J. PERSONS.

5 Div. 824.

Supreme Court of Alabama.

Nov. 21, 1968.

Rehearing Denied Dec. 11, 1969.

Rushton, Stakely & Johnston, Montgomery, for appellants.

Russell, Raymon & Russell, Tuskegee, for appellee.

LIVINGSTON, Chief Justice.

Respondents and cross-complainants appeal from a (final and supplemental) decree of the Circuit Court of Macon County in Equity, wherein certain lands belonging to appellants and appellee were ordered sold for partition among the joint owners (appellants and appellee), and certain relief denied to appellants. Demurrers of appellee to an original cross bill and amendatory cross bills were sustained and the cross bills dismissed upon failure of appellants further to amend them.

It appears from the evidence without dispute that one F. J. Persons, Sr., died in 1914, leaving a widow, Claudia Persons, and three children, F. J. Persons, Jr. (appellee), Olivia and Bernice. The widow subsequently married one Irvin Menifee; Bernice married one Lawrence D. Mason (party respondent), while Olivia married Green B. Smith, also a party respondent, and here an appellant. The widow, Claudia Menifee, died in December, 1962, without issue by her second husband; Olivia died intestate in 1958, leaving eight children born to her marriage with Green B. Smith. These children were all made parties respondent to the bill for partition, which was filed on January 14, 1963, shortly after the death of Claudia Persons Menifee.

The deceased, F. J. Persons, Sr., left 115 acres of land in Macon County. This land had been his homestead or the place of his residence prior to moving to Jefferson County where he resided when he died. The widow, with her three children, moved back to her former homestead, the 115 acres, where she resided when she married Irvin Menifee. Sometime after this marriage, she and her husband moved off and never again resided on this land. This acreage and the improvements thereon were run-down and badly deteriorated prior and subsequent to her marriage. There was no administration on the decedent Persons' estate, and no dower in the land was ever set aside or allotted to the widow.

Sometime in the early part of 1922 or 1923, the widow importuned her son-in-law, Green B. Smith, and his wife, Olivia, to move on the lands, the 115 acres, and according to his version, she gave the land to them, but no conveyance was ever executed. Smith and his wife, responding to the invitation, moved on the land in 1922 or 1923. They, during the course of their occupancy and pending the death of Claudia Menifee in December, 1962 planted pecan trees, made considerable repairs and improvements of value, and were living there in December, 1962, when Claudia Menifee died.

Smith signed the tax assessment sheets from year to year pending the death of his mother-in-law. The property, due to the reluctance of the tax assessor, according to Smith, was not assessed in his name, but to a specific heir (by name) and 'others,--heirs of F. J. Persons, deceased.' Smith paid the taxes accruing during his occupancy.

Pending the instant suit, and soon after it was filed, Smith procured a valid conveyance to the land from all eight of his children and their respective spouses. He then proceeded in answer to the bill for partition to assert title to the tract of land that is the subject matter of this suit.

This assertion was in the form of an answer to the original complaint in which he denied that complainant had any right, title or interest in the land; also he made such assertion by answer and cross bill to which demurrer of complainant was sustained. He filed several amendatory cross bills alleging and claiming certain relief as to taxes paid, repairs and improvements made during the occupancy of himself and his wife. Demurrers to these amendatory cross bills were sustained, culminating in a dismissal by the trial court when final decrees (original and supplemental) were rendered. According to the trial court, the dismissal was ordered upon failure of the cross-complainants to amend after demurrer sustained.

Respondent Smith and five of his children, on May 21, 1965, which was a few days prior to taking evidence that began on June 22, 1965, filed an answer to the original complaint. This answer was amendatory of the original answer. It was not labeled or identified by allegations that it was a cross bill, although certain affirmative allegations were made with respect to Smith's ownership of the land, taxes paid, repairs made and improvements built on the premises. The answer contained many of the allegations of the original cross bills, and particularly denied complainant owned or had any interest in the subject land.

The answer also prayed that respondent Smith be given certain relief. We quote the prayer as follows:

'And your respondent Green B. Smith, Sr. having answered, is entitled to a determination by this Court that the above described property is his, and that the Complainant F. J. Persons and the respondent Lawrence D. Mason (surviving husband of Bernice Persons) have no right, title or interest therein by virtue of Respondent Green B. Smith, Sr.'s acquisition of title by conveyance from his children and by Adverse Possession or Prescription. Your Respondent further avers that even if this Court should deny his title as aforesaid, that he is entitled to the value of his curtesy rights plus the value of title acquired by him from his said children aforesaid, plus the value of the taxes paid by him on said property since 1922, with interest thereon, and plus the value of the improvements to the property made by him since 1922, which interest thereon. And Respondent Green B. Smith, Sr., prays for equitable relief in the premises, both general and special.'

There was no demurrer to this particular instrument, which, as we have noted, contains kindred allegations and prayer for relief that appear in prior cross bills to which demurrers were sustained.

When the trial started, the following colloquy took place between counsel for the parties and the trial court. We quote therefrom as follows:

'MR. RAYMON: (Counsel for appellee) If the Court please, I believe that by agreement of the Counsel for the Respondent we can stipulate that the property in question as described in the bill of complaint is a correct description of the property and that it was owned by F. J. Persons, Sr., at the time of his death somewhere around 1915 or 1916, unless you all have something different.

'MR. STAKELY: (Counsel for respondent) 1914.

'MR. RAYMON: Well, it was owned by him at the time of his death. And then we will let the witnesses testify F. J. Persons, Sr., was the owner at the time of his death.

'THE COURT: Could you go a little further and just stipulate who the heirs are? Wouldn't that be necessary in this case?

'MR. RAYMON: Yes, sir.

'THE COURT: Who the heirs at law are?

'MR. RAYMON: Yes, sir, we could do that.

'MR. STAKELY: I don't think it would take too much to do that, Your Honor. Is your man prepared to testify to that?

'MR. RAYMON: Yes, he knows who the heirs are. Maybe we better just let the witnesses testify to that, so we won't have to waste any time introducing deeds and so forth.

'THE COURT: Gentlemen, as I understand this case, the original bill of complaint was filed by F. J. Persons, who apparently is F. J. Persons, Jr.

'MR. RAYMON: That's correct.

'THE COURT: Then a bill for partition; ans then, the Respondent now files an answer claiming title to the property in the name of Green Smith by prescription or adverse possession. Those are the issues, aren't they?

'MR. JOHNSTON: (also Counsel for respondent Smith) Generally, Sir. He also not only claims it by prescription, but by virtue of a conveyance made to him by his children as the heirs of their mother, deceased. In order that we can get complete on that subject, Your Honor, the alternative position is in here. The bill as I understand it, seeks sale for division. Respondent answers in these alternatives; number one, if the Court should find the interest of the parties as alleged in the complaint that the property can be partitioned, and that there is no need for sale for division. And then, secondly, it is the position of the Respondent that the Complainant does not have title; that title is vested in the Respondent by prescription and by virtue of the deed of conveyance.

'THE COURT: Vested in Green B. Smith, isn't it?

'MR. JOHNSTON: That's right, sir. By prescription and by virtue of a deed.

'THE COURT: By virtue of a deed executed to him by his children pendente lite?

'MR. RAYMON: That's right.

'THE COURT: Okay.

'MR. JOHNSTON: And then in the alternative our position is that even if all the issues are found against the Respondent Smith, that his position in occupancy was such that he is entitled to be repaid for taxes paid by him with interest thereon. And the improvements made by him on the property. Is that correct? Have I correctly stated the--

'MR. RAYMON: That is what you are contending.

'MR. JOHNSTON: The issues as they have been made?

'MR. RAYMON: That's what I think your answer is.'

While no answer to the instrument which contains affirmative allegations and prayer for relief was ever filed, it occurs to us that the parties agreed that the issues before the court were title by deed or adverse possession and prescription; and in the alternative the right vel non of Respondent Smith to a refund of taxes paid and reimbursement for improvements on the property which he contends he made during his occupancy. See Atkins v. Atkins, 253 Ala. 43, 42 So.2d 650.

We have examined the evidence and find that it was responsive to the affirmative allegations in the answer and to the aforequoted stipulation of issues between counsel for the parties that were submitted to the court.

We recognize that sustention of demurrers to the designated cross bill and...