Snodgrass v. Snodgrass

• Decision Date: 03 November 1927
• Docket Number: 8 Div. 887
• Citation: 115 So. 21,217 Ala. 128
• Parties: SNODGRASS et al. v. SNODGRASS.
• Court: Alabama Supreme Court

115 So. 21

217 Ala. 128

SNODGRASS et al. v. SNODGRASS.

8 Div. 887

Supreme Court of Alabama

November 3, 1927

Rehearing Denied Jan. 12, 1928

Appeal from Circuit Court, Jackson County; W.W. Haralson, Judge.

Bill in equity by Texas Snodgrass and others against J.D. Snodgrass and cross-bill by respondent. From the decree, complainants appeal. Corrected and affirmed.

See also, 212 Ala. 74, 101 So. 837.

Ernest Parks, of Scottsboro, for appellants.

D.P Wimberly and Proctor & Snodgrass, all of Scottsboro, for appellee.

THOMAS J.

This is the second appeal. 212 Ala. 74, 101 So. 837. Upon reversal the parties by amendment and agreement reshaped the pleading or the effect thereof, and in some respects extended, and added to, the maps exhibited, incorporated in the evidence a later survey, and the description of the Snodgrass deed of 1871 is changed from "170" to "17." The testimony was retaken and more fully developed.

The decree is in error requiring reformation of a deed as to any tract of land not specifically within the pleadings and litigated issues of fact. We have been unable to find that the S.E. 1/4 of the S.E. 1/4 of section 24, township 4, range 6 E., Huntsville meridian, or a part thereof, is within the issues presented, and yet a part of that quarter section is required to be included in the conveyance from complainants to respondent. The elimination of this tract of land from the bill, answer and cross-bill, and agreement of counsel indicates that it should not have been the subject of the decree in Snodgrass v. Snodgrass, 212 Ala. 74, 76 (2-5) 101 So. 837. in the answer and cross-bill it is recited:

"The respondent should further show unto the court that the following described portions of the Swink lands which have always been a part of the Swink lands, to wit: "The S.E. 1/4 of the N.E. 1/4, Sec. 24, T. 4, R. 6; the N.E. 1/4 of the S.E. 1/4, Sec. 24, T. 4, R. 6; the S.E. 1/4 of the S.E. 1/4, Sec. 24, T. 4, R. 6; and a portion of the N.W. 1/4 of the S.E. 1/4, Sec. 24, T. 4, R. 6--are not involved in the present suit, and are expressly eliminated from this suit for the following reasons:

"(1) Said lands above described adjoin lands owned by Texas Snodgrass individually.

"(2) Texas Snodgrass individually has laid claim to a portion of the lands last described, and since the institution of the present suit has wrongfully taken possession of a portion of said lands, and has erected fences on that portion of the lands so claimed by her.

"(3) A suit is now pending between J.D. Snodgrass and Texas Snodgrass, individually, to fix and determine the true boundary line between said above-described lands and the lands adjoining, which are owned by Texas Snodgrass individually. ***

"*** And also the true boundary line between the Caldwell 80 in the W. 1/2 of the N.E. 1/4, Sec. 24, T. 4., R. 6., and the Swink lands in the N.W. 1/4 of the S.E. 1/4, Sec. 24, T. 4, R. 6."

The several amendments thereafter did not make these lands the subject of reconveyance. A dividing line of the "Caldwell 80" is eliminated by agreement of counsel as being the subject of other inquiry. The question of whether or not the west line thereof was eliminated by the agreement of counsel was the subject of confusion, as attested by the argument of appellants' counsel. A consideration of the agreement merely eliminated the south line of that 80, and left before the court the west line thereof. It being by government survey may occasion some confusion; it being rectangular, the change of one side may effect the other. Within the issues now presented we will consider the evidence as to the west line, or agreed west line thereof.

It is without dispute that the Caldwell 80 (W. 1/2 of the N.E. 1/4, Sec. 24, T. 4, R. 6 E.), with other lands of that place, was allotted to W.E. Snodgrass on partition in 1912 of the N.H. Snodgrass lands among the several tenants in common, by commissioner whose report is of date of October 3 of that year. The depositions of Mr. Hall as to the purpose and extent of the survey that he made of certain of said lands that were allotted to J. Thomas Snodgrass, and his receipt for the compensation paid him by J.D. Snodgrass, as guardian, for such service, show that the survey was made, or services rendered, in August or September of 1913. The date of that receipt is October 15, 1913. It is apparent that the commissioner from the chancery court for the partition or allotment of the N.H. Snodgrass lands, and as a part thereof the Caldwell place, to W.E. Snodgrass, and of which was the W. 1/2 of the N.E. 1/4 of Sec. 24, said township and range, was not influenced by the Hall survey of the controverted line. In that report of October 3, 1912, the Caldwell place, as set apart to W.E. Snodgrass, is described as follows:

"Caldwell place, described as follows: W. 1/4 of N.W. 1/4, and S.W. 1/4 of section 13, S. 1/2 of N.E. 1/4 of E. 1/2 of S.E. 1/2, section 14, and W. 1/2 of N.E. 1/4, section 24, all in township 4, range 6 east, containing 480 acres more or less."

Counsel for appellants insist that the Hall survey was to establish the respective holdings of the parties immediately affected by the partition, as well as its primary object to ascertain the areas of cultivated lands in the determination of the amounts due for rents on the J. Thomas Snodgrass lands that were contiguous to complainants' Caldwell 80. In response to this contention respondent says neither he nor his ward was bound as to title by such lines that may have been taken or run by Hall, after the allotment by the commissioner; all parties in interest not being present. In a sense, the parties here were interested in the ascertainment of tillable land; yet that survey, without more, could not affect the title of the minor, J. Thomas Snodgrass, to lands in the E. 1/2 of the N.W. 1/4 of section 24. The pertinent inquiry then is: Did the parties to the allotment by the commission, acting as it did in 1912, thereafter acquiesce in Hall's ascertainment of their lines along the west side of the Caldwell

80 (east side of Swink 80) from 1913 to and after the death of J. Thomas Snodgrass in 1917, and to the date of the partition of his lands in 1919, so to bind them to the result of the Hall survey?

In Betts v. Ward, 196 Ala. 248, 253, 72 So. 110, this court said of such settlements and partition of real property that, where the respective parties in interest, by parol partition followed by the exclusive possession in severalty and the exercise of ownership, had gone into such possession of the land set apart to them by the other joint owners, such other party or parties in interest and in agreement by partition, and successors in title (no bad faith and fraud being pleaded), are estopped in equity to repudiate the agreement accomplished by the respective surrender and taking of possession in severalty of the several allotments. This estoppel is rested on the ground that such possession and acquiescence constituted a part performance, and that the interest of such party seeking to reopen the partition and allotment has ceased to exist in equity, and that it would be unjust and not in accord with the administration of equitable principles, in the absence of fraud or inequitable conduct, to repudiate such consummated agreement of partition and settlement of the rights in and growing out of the common property. Oliver v. Williams, 163 Ala. 376, 50 So. 937; Hodge v. Joy, 207 Ala. 198, 203, 92 So. 171; Hollis v. Watkins, 189 Ala. 292, 297, 298, 66 So. 29; Yarbrough, Adm'r, v. Avant, 66 Ala. 526; Freeman on Cot. & Part. 398; Welchel v. Thompson, 39 Ga. 559, 99 Am.Dec. 470; Lacy v. Gard, 60 Ill.App. 72; Weed v. Terry, 2 Doug. (Mich.) 344, 45 Am.Dec. 257; Kennemore v. Kennemore, 26 S.C. 251, 1 S.E. 881; LeBourgeoise v. Blank, 8 Mo.App. 434; Allen v. Seawell (C.C.A.) 70 F. 561; Whaley v. Dawson, 2 Schoales & L. 367.

Observation made on former appeal appears to have been on the assumption that the Hall survey had relation to the allotment, or was made pursuant thereto. The receipt before us and the evidence relating to the time and circumstances of that survey place it in the late summer or early fall of 1913, and about a year after the allotment of the N.H. Snodgrass lands to the several brothers and the widow of decedent.

Some of the commissioners testified that the exact land lines (of which was the west line of the W. 1/2 of the N.E. 1/4 of section 24 of said township and range) were not located or not considered by the commissioners to be material in the setting apart of these lands, as was done from the deed and as indicated to them by Gant and Gullatt.

The agreement of counsel excluded the south line of the Caldwell 80, for the reasons stated, viz:

"And that the said bill be further amended by striking out the following from the prayer of the said bill: 'And also the true boundary line between the Caldwell 80 in the W. 1/2 of the N.E. 3/4, section 24, T. 4, R. 6, and the Swink land in the N.W. 1/4 of the S.E. 1/4, section 24, T. 4, R. 6,' where the same occurs in lines 14, 15, and 16 on page 10 of the respondent's substituted answer and cross-bill.

"And it is further agreed that the location of the true boundary line between the Caldwell 80, which is the W. 1/2 of the N.E. 1/4, section 24, T. 4, R. 6, and the Swink lands in the N.W. 1/4 of the S.E. 1/4, section 24, T. 4, R. 6, be left out of the litigation, and not determined in this cause, inasmuch as the dispute as to this line can be settled in a cause now pending in the circuit court of Jackson county, Ala., wherein Texas Snodgrass individually is complainant and J.D. Snodgrass is respondent, and it is the desire of all parties concerned that the location of this line be eliminated from the present suit."

It...