Stewart v. Childress

• Decision Date: 09 April 1959
• Docket Number: 5 Div. 694
• Citation: 111 So.2d 8,269 Ala. 87
• Parties: Willie James STEWART et al. v. Horace CHILDRESS.
• Court: Alabama Supreme Court

Page 8

111 So.2d 8

269 Ala. 87

Willie James STEWART et al. v. Horace CHILDRESS.

5 Div. 694.

Supreme Court of Alabama.

April 9, 1959.

Robt. L. Bowers, Gerald & Bowers, Clanton, for appellants.

Speaks & Burnett, Clanton, for appellee.

SIMPSON, Justice.

This appeal is taken from a final decree which overruled complainants' demurrer and exceptions to respondent's cross-bill and answer respectively, denied relief for which complainants had prayed in their bill to quiet title, granted to the respondent the relief prayed for in his answer and cross-bill, decreed that the complainants have no right, title, or interest in the subject property, and quieted respondent's title in and to said property. In the decree it was further ordered that the respondent have and recover possession of the tract of land known as Parcel Number Two.

By agreement of the parties to this litigation, and pursuant to an order of the lower court, an ejectment suit seeking to recover possession of a tract of 77 acres of the subject property, filed by the respondent on February 25, 1957, wherein the defendant was one of the complainants in the present proceeding, was transferred to the equity side of the court and consolidated with a statutory bill to quiet title to the remaining 80 acre tract of the subject property, wherein the resondent was the plaintiff in the ejectment suit. Thus the title to both parcels of property was tried and quieted together in the equity court.

Complainant's bill called upon the respondent Horace Childress to set forth and specify his title, claim, interest, or incumbrance upon the property claimed by complainants, and how and by what instrument the same was derived and created, following the mandate of Section 1110 of Title 7, Code 1940. Respondent's answer responded to this particular paragraph of the bill in the following manner:

'On to wit: November 5, 1943, S. M. Pate, purchased at a mortgage foreclosure sale the property described in the bill of complaint as well as the property described in Case No. 7604 heretofore pending on the law side of this Court and which by agreement of the parties has been consolidated with the instant case. Respondent further avers that on to wit: May 3, 1955, he purchased the following described property from S. M. Pate and wife, Virgie M. Pate: [Here follows a description of one of the parcels of the subject property].

'Subsequently and some time in the fall of 1956, this respondent purchased the balance of the property involved in this suit and more particularly described as follows: [Here follows a description of the other parcel of the subject property].'

Appellant has provided us with an ingenious argument, contending in essence that the part of the answer set out above was insufficient for failing to specifically avow the character and source of the respondent's title. His rationale is based in part on Section 1111 of Title 7, Code 1940, and on rules enunciated in such cases as Vidmer v. Lloyd, 193 Ala. 386, 69 So. 480; Reeder v. Cox, 218 Ala. 182, 118 So. 338; Adams v. Pollak, 217 Ala. 688, 117 So. 299; Rucker v. Jackson, 180 Ala. 109, 60 So. 139, and Kinney v. Steiner Brothers, 149 Ala. 104, 43 So. 25. On the other hand, there is the case of Rushton v. McLaughlin, 213 Ala. 380, 104 So. 824, which holds that an answer denying each allegation of the bill and demanding strict proof thereof is sufficient and puts in issue complainants' title. If there perchance exists any conflict in the statement appearing in the Rushton case and the authorities advanced by the appellant, it is not necessary to here attempt to reconcile it, as the status of the pleadings in the instant case do not require application of any of the rules contended for.

In complainants' amended bill filed subsequently to the respondent's answer it is averred as follows:

'That it now appears that the respondent traces his claim to a purported foreclosure deed, dated November 5, 1943, and filed on January 8, 1953 and recorded in Book 406 at page 9 in the office of the Judge of Probate Chilton County, Alabama, your complainants aver that said deed recites in its granting clause as follows:

'S. M. Pate, as owner of such Mortgage, does hereby grant, bargain, sell and convey unto the said S. M. Pate, all the right, title, claim and interest of the said Monroe Stewart and his wife, Millie Stewart.'

And a written stipulation by counsel for both sides, agreed to and filed in the cause and recited in the note of testimony as follows:

'2. That fee simple title to both parcels of land was vested in one Monroe Stewart on April 26, 1934, and said property had been owned and occupied by him at that time, for from sixteen to thirty years subject to any outstanding mortgages.

'3. That said Monroe Stewart was the ancestor, either father or grandfather, of all of the complainants except Millie Stewart, who was his wife.

'4. That a purported mortgage with both of the above parcels as security was filed for record on April 26, 1934, in Book 244 at page 607 of the Probate Records of Chilton County, Alabama, evidencing a debt of $300.00. Also, another purported mortgage with parcel two as security was filed for record April 5, 1934, in Book 249 at page 85. That said Monroe Stewart died intestate March 19, 1937 leaving all of the complainants as his heirs at law.

'5. That two foreclosure deeds were executed November 5, 1943, conveying both parcels of said property to the purchaser at the foreclosure sale, S. M. Pate. These deeds were filed for record on January 8, 1953, and recorded in Book 406 pages 12 through 14.

'6. S. M. Pate deeded parcel one to the respondent May 3, 1955, as shown in Book 425, page 128; and deeded parcel two to the respondent December 14, 1956, as shown in Book 326, page 147.'

It would be unduly hypertechnical for us to say now, in view of the allegation in appellants' amended bill and the stipulation, that respondent's answer was deficient in specifying the character and source of his title. We believe that the record thus shows that the appellants were sufficiently informed as to the nature of appellee's claim of title.

There is likewise no merit in appellants' contention that the purchaser at the foreclosure sale, S. M. Pate, acquired no right or title by said deeds because the mortgagor, Monroe Stewart, was deceased at the time the deeds were executed.

Appellants rested their claim of title to the subject tracts on the theory of adverse possession for the requisite period under a claim of title by descent cast. It is true, as pointed out by appellants, that under a statutory bill to quiet title, where it is shown that complainant is in the peaceful possession of the land, either actual or constructive, at the time of the filing of the bill and that there was no suit pending to test the validity of the title, a prima facie case is made out, entitling the complainants to relief, and the burden is then upon the respondent to establish his claim to the land. Vidmer v. Lloyd, supra; Smith v. Irvington Land Co., 190 Ala. 455, 67 So. 250; Burkett v. Newell, 212 Ala. 183, 101 So. 836. But when the respondent shows legal title to the land, the burden of avoiding it by showing superior title by adverse possession shifts to the complainant. St. Clair Springs Hotel Co. v. Balcomb, 215 Ala. 12, 108 So. 858, and see Behan v. Friedman, 218 Ala. 513, 119 So. 20. Furthermore, it is well settled that in a proceeding under the statute, 'if the averments of the bill and answer conform to the requirements of the statute, the issues involve everything necessary to a determination by the court as to whether the complainant or the defendant has the superior title to the property, and it is proper for the court under the issues thus found to determine in which of the parties the title resides.' Grayson v. Muckleroy, 220 Ala. 182, 124 So. 217, 220; Hinds v. Federal Land Bank of New Orleans, 235 Ala. 360, 179 So. 194; Reeder v. Cox, supra; Adler v. Sullivan, 115 Ala. 582, 22 So. 87.

The merits of appellants' claim of adverse possession were, therefore, put to issue by appellee's showing of good paper title and his categorical denial in the answer to the bill of complaint as last amended of each and every allegation thereof, including those setting up adverse possession. The allegations of adverse possession were not admitted by such a denial, as appellants contend is the case by applying Equity Rule 25, Appendix, Title 7, Code 1940. Facts relative to the matter of adverse possession would be within the peculiar knowledge of the appellants, not the appellee.

In the last analysis, the case is reduced to a question of fact--are all the required elements of title by adverse possession present? Appellee says that the evidence shows that the possession of appellants was permissive, that is, that S. M. Pate, who had bought the mortgage, allowed the appellants to remain on the land with the idea that they would at some time buy the property back from him. But appellants reply with the argument that such...