Snow v. Bray

• Decision Date: 11 May 1916
• Docket Number: 6 Div. 167
• Citation: 198 Ala. 398,73 So. 542
• Parties: SNOW v. BRAY et al.
• Court: Alabama Supreme Court

73 So. 542

198 Ala. 398

SNOW v. BRAY et al.

6 Div. 167

Supreme Court of Alabama

May 11, 1916

On Rehearing, December 30, 1916

Appeal from City Court of Birmingham; John C. Pugh, Judge.

Ejectment action by Mary A. Snow against J.A. Bray and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

A Latady, of Birmingham, and Etheridge & Lamar, of Bessemer for appellant.

Harsh Harsh & Harsh, Nathan L. Miller, and Needham A. Graham, Jr., all of Birmingham, for appellees.

SAYRE J.

Statutory action in the nature of ejectment by appellant against appellees for the recovery of the east half of the southwest quarter of the southeast quarter of section 12, township 18 south, range 4 west of the Huntsville Meridian. By disclaimers and pleas the controversy between plaintiff and the several defendants was limited in the case of each defendant to certain lots they had purchased from the Monte Sano Company according to a plat or map of an inclusive 100-acre tract, showing a division of the entire tract into several hundred lots. The Monte Sano Company had purchased the inclusive tract in the summer of 1902, and the evidence went to show that about the same time it had caused the property to be surveyed and laid off into streets, avenues, blocks, and lots, as shown by the map, the streets and avenues running entirely across the property; that each street, avenue, block, and lot was marked by stobs, signs, and numbers; that the timber was cut and removed from the streets and avenues; that some slight grading was done in the streets and avenues, some of the stobs and some signs of the grading being visible upon the land at the time of the trial, but at that time small growth had appeared in the streets and avenues; that it caused a sink hole on the property to be drained; that a sign, four or five feet square, was placed on the tract near the car line advertising the lots for sale; that in September, 1902, the Monte Sano Company sold a lot to one Scott, who began immediately to build, and moved upon the lot in October of the same year, after which, and until his death in 1910, he exercised "a general supervision" for the company over all the property; that the company began in the same year to advertise and offer the lots for sale, its agents going upon the land with prospective purchasers frequently from time to time; but the car line, Scott's residence, the sign, and the sink hole, were on a part of the 100-acre tract other than the 20 acres described in the complaint. A number of houses had been built by purchasers on parts of the survey other than the 20 acres. Other purchasers had built and occupied houses on the 20 acres, and some had let their houses to rent; those persons actually residing on the land at the time of the commencement of this suit, some 16 in number, being named as the original parties defendant. The oldest of the houses on the tract, except Scott's, appear to have been built five or six years before suit brought, and, unquestionably, during that time defendants, who occupied these houses, had held their several purchases adversely to all the world.

Defendants had the general charge, and verdict and judgment accordingly, in the court below; and the main question presented by the record is whether the evidence showed without conflict or reasonable adverse inference that the Monte Sano Company held continuous adverse possession during the period from 1902 down to the purchase of their respective lots by defendants so that, by tacking the two possessions, defendants made out a title by adverse possession for the statutory period of ten years. We state the question in this form for the reason that this in our judgment is the statement of the case most favorable to the trial court's conclusion that as matter of law on the uncontradicted evidence, if accepted by the jury, defendants were entitled to prevail. Plaintiff claimed, of course, a present possessory interest in the land, and could not maintain her action on proof of any different interest. She offered in evidence the last will and testament of her father, who had died in the undisputed ownership and possession of a large body of land that included all the land to which we have referred. The will devised all the testator's real property to his widow "during her natural life or widowhood or the youngest child arrives at lawful age." The next clause of the will provided as follows:

"It is my will and desire and I hereby direct that my property be kept together until my youngest child arrives at full age, unless my wife Rebecca, die or marry another man, then upon the happening of any of the aforesaid circumstances, I wish my executor to sell my property as hereinafter directed."

The direction referred to was expressed in this language:

"I wish my executor to sell my real estate, either together or in such divisions and subdivisions as will be likely to command the greatest prices and divide the money arising from such sale among the children."

Plaintiff then introduced the record of the probate court showing that the widow had dissented from the will, and that, in lieu of the provisions made for her by the will, dower had been assigned to her. This assignment included 80 acres of the 100-acre tract claimed by the Monte Sano Company, but not the 20-acre tract described in the complaint which is contiguous to it on the west. It appeared in the course of the trial that Laird, plaintiff's father, died in 1876, leaving a widow and 12 children, some of whom, plaintiff among them, were minors at that time. Two years later the widow married one Tulley. In the meantime the will had been probated and dower assigned. The executor named in the will appears to have entered upon the execution of his trust, but did nothing of any consequence here. In 1877, M.M. Gwin was acting as administrator de bonis non with the will annexed. His authority is not denied. On March 3, 1881, Gwin's account as upon a final settlement was passed and allowed in the probate court.

Upon these facts, some of them drawn from the evidence offered by defendants, plaintiff's prima facie case has not been denied; the theory being, as we infer, that, since the land was not devised as land to testator's children, the title, after the widow's dissent, descended to his heirs and has remained in them subject only to the dower assigned and to interception by a personal representative for the purpose of paying debts or for distribution as personalty under the will. We consider, therefore, the claim of defendants as presented in the brief of counsel.

Defendants (appellees) seek to justify the general charge in the court below on several grounds. For one, they say that any interest plaintiff may have had in the land has been divested by the adverse possession of themselves and those under whom they claim for a period of ten consecutive years or more. That defendants have been in possession, holding adversely, since they improved and occupied their several lots, there can be no question; nor can it be doubted that the Monte Sano Company was in possession in the summer of 1902. The things they did then were quite demonstrative as acts of ownership. But the interval of four or five years is not at all so accounted for as to show conclusively and as matter of law notice to plaintiff, though she was all the while cognizant of the condition of the property, that the Monte Sano Company was still in possession under an adverse claim of ownership. Scott's possession of a lot can avail defendants nothing. He derived his title from the company, but he held for himself. He was not a tenant holding for his vendor, but as owner holding in his own right. His possession had no effect upon the remainder of the property to which he laid no claim. On the evidence, the substance of which has been stated so far as it bore upon the possession claimed by the company the question of plaintiff's title was not properly withdrawn from the jury by the general charge given at the request of defendants. Elyton Land Co. v. Denny, 108 Ala. 553, and cases cited on page 562, 18 So. 561. Continuity is as essential as any other element of adverse possession. Indeed, "the continuity of the adverse possession is the very essence of the doctrine and policy of the statutes of limitation," for "whenever a party quits the possession the seisin of the true owner is restored, and a subsequent wrongful entry constitutes a new disseisin." Henry v. Brown, 143 Ala. 446, 39 So. 325. It is familiar doctrine, too, that, while the fact that at times there may be no actual possession does not necessarily destroy continuity, the inference of continuity must be rested upon proof of acts of possession naturally indicating continuity of claim (Hollingsworth v. Walker, 98 Ala. 543, 13 So. 6), considered in connection with the lapse of time allowed to intervene between successive acts ( Farley v. Smith, 39 Ala. 38), and is generally a question for the jury. The question debatable in this case was whether, during the four or five years intervening between the summer of 1902 and the improvement of the lots claimed by defendants, the Monte Sano Company--to employ the language of Gibson, J., in Stephens v. Leach, 19 Pa. 262--kept its flag flying and presented at all times a hostile front to the owner of the true title. Whatever may have been in the mind of the company, it must be judged by its acts. Our judgment is that, whatever conclusion the jury may have drawn, in the circumstances here shown, notice to the plaintiff of the company's adverse claim during the period mentioned was not to be inferred as matter of law from the mere generalization that its agent Scott exercised "a general supervision" over the property. Correct principle and the...