Snow v. Tulley

• Decision Date: 12 April 1917
• Docket Number: 6 Div. 347
• Citation: 199 Ala. 701,75 So. 164,201 Ala. 17
• Parties: SNOW v. TULLEY et al.
• Court: Alabama Supreme Court

75 So. 164

199 Ala. 701, 201 Ala. 17

SNOW v. TULLEY et al.

6 Div. 347

Supreme Court of Alabama

April 12, 1917

Rehearing Denied May 17, 1917

Appeal from City Court of Birmingham; A.H. Alston, Judge.

Statutory ejectment by Mary Ann Snow against R.J. Tulley and others. From a judgment for defendants, plaintiff appeals. Affirmed.

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

N.L Miller and N.A. Graham, Jr., both of Birmingham, for appellees.

MAYFIELD J.

This is a statutory action in the nature of ejectment. This is the second appeal. See opinion in former appeal (190 Ala. 556, 68 So. 301) for a statement of most all the facts and questions of dispute between the parties, as well as a discussion of most all the questions raised on this appeal.

The action is for a certain 20-acre tract of land which was once embraced with a larger tract of a deceased owner. To the widow of this deceased owner dower lands were assigned, the other lands of the estate being sold to pay debts, for distribution, etc.; but for some reason--possibly accident--this particular 20-acre tract was not so certainly or definitely described as to place it beyond doubt that the title thereto ever passed out of the heirs of the decedent except by adverse possession of subsequent claimants. The insistence is made that it was included in the given inclosure of the dower lands, of which it formed no part, but that it was held under the same right and title as the dower lands were held; and that therefore this possession was not adverse to the heirs or those who claimed through the ancestor. This contention, however, was ruled against appellant on the former appeal. Great uncertainty intervenes as to whether title was created, or defeated, by adverse possession, because there was no color of title as to it, the deeds conveying other parts of the land failing to describe it; but it is claimed that it was in fact sold, and was intended to be conveyed, and was possessed and held by the grantees believing that it was so conveyed.

Appellant is in error in treating the case as if the 20-acre tract in question were a part of the dower. It was not in fact a part thereof, and, as was decided before, was not held and could not be held by the doweress or those claiming under her as such. Her possession thereof, if any she had, was either adverse, or by sufferance of the heirs or the personal representative of her deceased husband. Counsel for appellant are also in error in treating the case as if the 20-acre tract in question was inclosed with the dower, so as to separate it from the other lands of the decedent. It was no more inclosed with the dower land than with the other lands--those sold by the personal representative.

One circumstance tending to confuse the possession of the 20-acre tract is that the widow and doweress remarried, and her second husband purchased the lands, other than the dower belonging to the estate of her first husband. He did not purchase at the administrator's sale, but bought from those who did so purchase; and ...