Thompson v. Odom, 1 Div. 70

• Citation: 184 So.2d 120,279 Ala. 211
• Decision Date: 03 March 1966
• Docket Number: 1 Div. 70
• Parties: Annetia Averett THOMPSON v. Warren E. ODOM et al.
• Court: Supreme Court of Alabama

Page 120

184 So.2d 120

279 Ala. 211

Annetia Averett THOMPSON v. Warren E. ODOM et al.

1 Div. 70.

Supreme Court of Alabama.

March 3, 1966.

Leo L. Crain, Mobile, for appellant.

D. R. Coley, Jr., Mobile, for appellees.

LAWSON, Justice.

This is an appeal from a final decree of the Circuit Court of Mobile County, in Equity.

Mary J. Odom, a widow, died intestate in Mobile County on May 14, 1936, survived by several children. The record and brief contain conflicting statements as to the date of her death, but it seems to us that May 14, 1936, is the correct date. We are not certain as to the number of children who survived Mary J. Odom. There were either nine or ten. Perhaps she was survived by nine children and one step-child. We do not think these uncertainties are material to the questions presented on this appeal, but reference is made to them for the sake of accuracy.

At the time of her death Mary J. Odom was the owner of six hundred acres of land in Mobile County, situated approximately three miles north of Citronelle. The land was encumbered by a mortgage in the principal sum of $400 which Mary J. Odom had executed to one J. Tyler Turner.

On December 9, 1938, Turner transferred the mortgage to B. C. Pringle and M. J. Plemmons. Shortly thereafter, on January 3, 1939, Pringle and Plemmons foreclosed the mortgage and purchased the mortgaged lands at the foreclosure sale.

On September 11, 1939, B. C. Pringle and M. J. Plemmons conveyed the six hundred acres of land to Hattie V. Salter and Cora H. Plemmons, both of whom are daughters of Mary J. Odom. Cora H. Plemmons is the wife of M. J. Plemmons and Hattie V. Salter is the administratrix of the estate of her mother. Two other children of Mary J. Odom, namely, Warren Odom and Mrs. Fannie L. Williams, had previously sought to redeem from the foreclosure sale.

On February 7, 1940, Warren E. Odom, Fannie L. Williams, Amanda Odom Walker, Alma Grimes, George U. Odom, Means B. Odom and George Howard Odom filed a bill in the Circuit Court of Mobile County, in Equity, against Hattie V. Salter, Cora H. Plemmons and Maggie Odom. Apparently Hattie V. Salter and Cora H. Plemmons are sisters of all the complainants and Maggie Odom may be a half-sister of the complainants. The bill averred that the complainants and respondents were all the heirs at law and next of kin of Mary J. Odom, deceased. The bill sought to have the land owned by Mary J. Odom at the time of her death sold for division of the proceeds among the complainants and the respondents. Other relief, not necessary to mention here, was also sought. That cause was given docket number 13,754. Grounds of demurrer addressed to the bill as a whole and to certain aspects were overruled on July 9, 1940. The respondents Hattie V. Salter and Cora H. Plemmons appealed to this court. We affirmed on December 19, 1940. Rehearing was denied on January 23, 1941. Salter v. Odom, 240 Ala. 462, 199 So. 687. In affirming the decree of the trial court we held, in effect, that under the averments of the bill the purchase of the suit property by Hattie V. Salter and Cora H. Plemmons was, in effect, a redemption by them as co-tenants, which inures to the benefit of their brothers and sisters, all of whom were parties to the suit.

Shortly after our decision in Salter v. Odom, supra, and on May 11, 1942, Hattie V. Salter and Cora H. Plemmons executed a quitclaim deed as parties of the first part to W. M. Averett as party of the second part, which deed was placed on record on October 2, 1942. The granting clause of that instrument reads:

'WITNESSETH, that the Parties of the First Part, in consideration of the Sum of $160.00 (one hundred sixty) lawful money of the United States, paid by the Party of the Second Part, do hereby remise, release and quitclaim unto the Party of the Second Part, ALL of the following described Real Property situated in Mobile County Alabama, as follows N.W 1/4 of N.E 1/4 Sec.24 T2N R3W together with the appurtenances and all the estate and rights of the Parties of the First Part in and to said premises.'

The property described in the instrument of May 11, 1942, is a part of the land which Mary J. Odom owned at the time of her death and to which Hattie V. Salter and Cora H. Plemmons had acquired a conveyance in the manner outlined above.

On September 5, 1942, Hattie V. Salter and Cora H. Plemmons executed a similar quitclaim deed to Annetia Averett, which deed was placed on record on October 2, 1942. The granting clause of that deed is in all material respects the same as that in the deed from the same grantors to W. M. Averett except as copied in the record before us it recites a consideration of $55 and the land described therein was the 'S.W 1/4 of S.E. 1/4 Sec. 13, T. 2 N.R. 3 West, containing Forty Acres, more or less, * * *.'

The property described in the deed last referred to is also a part of the land owned by Mary J. Odom at the time of her death and which Hattie V. Salter and Cora H. Plemmons had purchased. The consideration shown in the deed as copied in the record may not be correct. There are indications in the record that $55 was only the down payment and that a total of $160 was paid by Annetia Averett for the described property.

W. M. Averett and Annetia Averett were not made parties to cause No. 13,764 and they did not intervene therein. We are not advised as to why so much time elapsed after our action overruling the application for rehearing in Salter v. Odom, supra, on January 23, 1941, before a final decree was rendered in said cause No. 13,764 on June 24, 1957. The record does show that oil was discovered in the vicinity of Citronelle in 1955 and perhaps that event was the reason that a cause which had been dormant for so long was reactivated.

The trial court in the decree of June 24, 1957, decreed that the then living complainants and the heirs at law and next of kin of two of the complainants who had died since the original bill was filed, together with the respondents, were the joint owners and tenants in common of all the land owned by Mary J. Odom at the time of her death, subject to certain oil, gas and mineral leases and rights and a surface easement. For the purposes of that decree the said land was considered as consisting of nine separate parcels. The land described in the deed of May 11, 1942, from Hattie V. Salter and Cora H. Plemmons to W. M. Averett was designated Parcel 5, while the land described in the deed of September 5, 1942, from the same grantors to Annetia Averett was referred to as Parcel 2. The interest of each of those found to have an interest in the six hundred acres of land was fixed.

The decree of June 24, 1957, although W. M. Averett and Annetia Averett were not parties to the litigation and had not intervened, contained the following provision:

'* * * but the Court does herein further find, ADJUDGE AND DECREE that the intervenors Annetia Averett and W. M. Averett have not established nor do they have any right, title or interest whatsoever in or to the lands involved herein, or in or to any parcel or portion thereof.'

Having determined that the subject property could not be equitably divided in kind, the Register was ordered to sell the surface interest of all those found by the court to have such an interest, after giving notice of the sale.

The sale was conducted on September 17, 1957. Prior to the sale Annetia Averett, through her attorney, gave notice to the Register and 'to any and all bidders and prospective purchasers of Parcels Two and Five' that she was the owner of the fee simple title to those parcels. As to Parcel 2, her claim of ownership was based on the deed to her from Hattie V. Salter and Cora H. Plemmons under date of September 5, 1942, and an adverse holding thereunder, together with the exclusive payment of taxes for more than ten years. With respect to Parcel 5, she claimed title under a deed from one A. B. Averett, with averments tending to show adverse possession by her and her predecessors in title for more than ten years. She also averred the exclusive payment of taxes on the property by herself and her predecessors in title for more than ten years. Annetia Averett, prior to the sale, also gave notice that she had not been a party to cause No. 13,764 and stated that consequently she was not bound by the decree in that cause.

In view of the notice given by Annetia Averett, the attorneys for complainants and respondents in cause No. 13,764 announced prior to the sale that Parcels 2 and 5 would be sold subject to purchaser or purchasers thereof acquiring good title; that if proper title could not be conveyed, the purchaser or purchasers would not have to complete the purchase.

At the sale held on September 17, 1957, George U. Odom, a son of Mary J. Odom, deceased, who was one of the complainants in cause No. 13,764, bought Parcels 2 and 5, to which Annetia Averett claimed title.

On November 7, 1957, Annetia Averett instituted this proceeding by filing her bill in the Circuit Court of Mobile County, in Equity, against all the persons who were held in the decree rendered in cause No. 13,764 to own an interest in the lands owned by Mrs. Mary J. Odom at the time of her death. On January 25, 1960, it being made known to the court that Means B. Odom, Sr., one of the respondents in the cause filed by Annetia Averett, had died, that action was revived against the widow of Means B. Odom, Sr., Individually and as executrix, and against all of the heirs at law and next of kin of the said Means B. Odom, Sr.

In her bill Annetia Averett sets out substantially all of the facts which we have delineated above, including the decrees in cause No. 13,764 and the notice given on her behalf by her attorney prior to the sale held on September 17, 1957. She also alleged:

'Your Petitioner shows unto this Honorable Court that she does, in fact, own all of Parcels 2 & 5 of the above described property, that she has lived on it,...