Spires v. Nix, 4 Div. 672

• Decision Date: 24 January 1952
• Docket Number: 4 Div. 672
• Citation: 57 So.2d 89,256 Ala. 642
• Parties: SPIRES et al. v. NIX.
• Court: Alabama Supreme Court

Page 89

57 So.2d 89

256 Ala. 642

SPIRES et al. v. NIX.

4 Div. 672.

Supreme Court of Alabama.

Jan. 24, 1952.

Rehearing Denied March 6, 1952.

Chauncey Sparks, Eufaula, and Jack Wallace, Clayton, for appellants.

Archie I. Grubb, Eufaula, for appellee.

FOSTER, Justice.

The controversy between these parties is what is commonly called a boundary line dispute. More particularly, there is a strip of land in dispute between their respective holdings whose ownership is controlled by adverse possession in connection with deeds constituting the muniments of title of the property owners, respectively. The lots of land are in the town of Clayton, Alabama, and on the east side of North Midway Street, and were originally owned by Miss Atlanta White as one tract. Miss White conducted a private school for a number of years and was well known throughout that territory. She first conveyed the lot claimed by complainant, which we will designate as the Nix lot. The description in her deed of that lot is not shown by the record, but it was to Bob T. Roberts, and he conveyed the lot to Dr. B. F. Jackson in 1916.

So far as here material and to paraphrase the description in the deed to Dr. Jackson, it refers to the property as the house and lot known as the White Place, formerly bought by Bob T. Roberts from Atlanta White, and gives the boundaries as being on the north by Dr. R. L. White and on the west by North Midway Street, running north and south 102 feet, more or less, and east from said North Midway Street to the Williams land. The lot now claimed by the complainant, Mrs. Nix, is approximately 114 feet north and south along North Midway Street instead of 102 feet. Dr. Jackson conveyed the lot to Dr. J. W. Robertson in 1923, using the same description. Dr. Robertson's heirs and successors in interest conveyed it to the complainant, Mrs. Nix, in 1944. It is there described, to paraphrase it, as known as the Dr. J. W. Robertson residence property, and particularly described by metes and bounds as follows, fronting on North Midway Street 102 feet, more or less, and bounded on the north by Mrs. Ann Jackson and on the east by Grubbs and on the south by Peach, and being the lot deeded to Dr. Robertson by Dr. Jackson.

The respondents, the Spires, claim the lot on the north side of complainant's lot under a deed executed to them by Mrs. Ann Jackson on January 15, 1950. Mrs. Ann Jackson bought the Spires' lot from White in 1934. The description of the lot to Mrs. Ann Jackson in said deed is that it begins at the northwest corner of the Nix residence lot, running north along Midway Street 81 feet, and east to other lands. The east and south lines need not be further described. The Spires are in possession of a lot of those dimensions whose southwest corner begins at the place where complainant contends is the true northwest corner of her lot.

The claim on behalf of complainant, Mrs. Nix, with reference to the strip in controversy is that it was acquired by adverse possession.

The evidence shows that while Dr. Jackson was in the occupancy of the land the did not use the strip of land in controversy, but had a garage on the south side of his lot and an entrance to it along the south side. His testimony is that there was no controversy about the north line and he thought nothing about it. But it clearly appears that during Dr. Robertson's ownership, extending over a period of twenty-one years, there was constant use of the strip in question by him and others in connection with his ownership.

The trial court found from the evidence that the title to this strip was acquired by complainant on account of such adverse possession in connection with that of her predecessors. It is not necessary to rehearse the evidence upon the basis of which the trial court acted. Much of it was the oral testimony of witnesses examined before him, and there is ample evidence to support his conclusion of fact that the ownership was acquired by Dr. Robertson. Such evidence is available to establish the rights of the parties with respect to a boundary line dispute. Brantley v. Helton, 224 Ala. 93, 139 So. 283; Hancock v. Warren, 235 Ala. 180, 177 So. 907; Alford v. Rodgers, 242 Ala. 370, 6 So.2d 409. Other cases need not be cited, as there is no question about the principle.

The question of law concerned in this controversy is whether or not the title which Dr. Robertson acquired by adverse possession was conveyed to the complainant, Mrs. Nix, and is within the description of the deed to her. Because if it is not within the description of the deed, complainant did not obtain the title which Dr. Robertson acquired by adverse possession and she has not had adverse possession for the required period. Those principles have been fully stated by us, and some of the cases so holding are: Alford v. Rodgers, supra; Denton v. Corr, 250 Ala. 149, 33 So.2d 625; Haywood v. Hollingsworth, 255 Ala. 453, 51 So.2d 674; Wilson v. Cooper, Ala.Sup., 54 So.2d 286.

Appellants contend that complainant did not receive a conveyance of the controverted area, but only received a conveyance of a lot whose western boundary line was 102 feet, more or less. This is in reliance upon the cases of Alford v. Rodgers, supra; Haywood v. Hollingsworth, supra; Denton v. Corr, supra, and Wilson v. Cooper, supra.

Complainant's claim is in recognition of a theory that her adverse possession may be tacked to that of the Robertsons without relying solely upon the acquisition of the title which the Robertsons may have acquired by adverse possession. That was probably in the mind of the trial court in stating that the complainant acquired title by her possession together with that of her predecessors. The principle is that if her possession is tacked to that of the Robertsons, it is not necessary that she have a conveyance from the Robertsons embracing the particular strip because her possession can be tacked without the necessity of such a conveyance. This principle has been declared in several of our cases, the first of which seems to have been Holt v. Adams, 121 Ala. 664, 25 So. 716, and Oliver v. Williams, 163 Ala. 376, 50 So. 937. Those cases hold that in order to establish continuity of adverse possession which will ripen into title, it is not necessary that there be a conveyance by the prior possessor to the one subsequently claiming possession, such as would be necessary to convey the legal title because 'the privity required to establish continuity of adverse possession which will ripen into title may be effected by any conveyance or agreement, written or verbal, which has for its object a transfer of the rights acquired under the original entry. A transfer of possession alone, without written evidence of the transfer, is sufficient to create privity.'

The trouble about the application of this theory to the status of complainant in this case is that it contemplates a situation where the prior claimant by adverse possession had not acquired the title to the property at the time of his conveyance to the complainant but only acquired a status of adverse possession which could lead to a title in complainant when tacked to her possession subsequently occurring. If the Robertsons had acquired the title by adverse possession at the time of the conveyance to complainant, that title could only pass to the complainant by a sufficient conveyance or by the status of adverse possession for the required length of time by the complainant subsequent to her conveyance from them. Milstead v. Devine, 254 Ala. 442, 48 So.2d 530; Tabor v. Craft, 217 Ala. 276, 116 So. 132.

Complainant did not have such possession sufficiently long to accomplish that purpose. Therefore, for her to maintain a status of ownership of the strip of land, complainant must have a deed from the Robertsons in which it is sufficiently described.

So that, we are remitted to an interpretation of the description in the deed from the Robertsons to the complainant, which we have heretofore paraphrased. We emphasize the fact that the lot is there described as being...