Tulley v. Snow

• Decision Date: 07 November 1914
• Docket Number: 647
• Citation: 190 Ala. 556,68 So. 301
• Parties: TULLEY et al. v. SNOW.
• Court: Alabama Supreme Court

68 So. 301

190 Ala. 556

TULLEY et al. v. SNOW.

No. 647

Supreme Court of Alabama

November 7, 1914

Appeal from Birmingham City Court; C.C. Nesmith, Judge.

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

Charge 5, given for plaintiff, is as follows:

"I charge you that the deed offered in evidence from the register in chancery, conveying to Andrew Tulley the reversion of the lands assigned to Rebecca J. Tulley as doweress of A.H. Laird, does not constitute color of title to the lands sued for in this action, and if you believe the evidence, you must find for plaintiff for the lands sued for in the complaint, to wit, lots 5 and 6 as described in the several pleas of disclaimer."

Nathan L. Miller and Needham A. Graham, Jr., both of Birmingham, for appellants.

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

McCLELLAN J.

Statutory ejectment by Mary Ann Snow against R.J. Tulley, John Tulley and Bettie Hicks. The complaint described 20 acres of land. R.J. Tulley disclaimed possession of any of the land. As the result of partial, separate disclaimers by the other two defendants, the contest proceeded with reference to lots 5 and 6 of the 20 acres so sued for. In the year 1876, A.H Laird died, seised and possessed of 400 acres of land. Surviving him were his widow and a number of children, the plaintiff, being one of them. The tract here in suit was a part of the land owned by him at the time of his death. He left a will, but his widow dissented therefrom. One hundred and forty acres of the Porter tract owned by him was, on February 23, 1877, set apart to the widow by the probate court as her dower. The aggregate acreage owned by A.H. Laird consisted of two tracts, viz., the Porter place, containing 280 acres, of which the land in suit was a part, and a 120-acre tract. The Porter place was subject to a vendor's lien. The 120-acre tract was sold, under administration proceedings, to one Vines in order to afford funds with which to pay debts against the estate additional to the sum due as purchase money for the Porter tract. Under proceedings in the chancery court of Jefferson county a decree was passed directing the sale of the lands of the Porter tract for the satisfaction of the lien of the vendor's assignee in this order: First, the reversion in the dower lands; second, the rest of the Porter tract; and third, if sufficient funds were not brought into prospect by the two preceding offers, then the dower rights were to be sold. Before the enforcement of this decree was effected, Laird's widow, to whom dower had been assigned as stated, married A.J. Tulley on April 12, 1878. Tulley bought the reversion at the sale under the decree, on February 2, 1880, paying sufficient therefor to entirely satisfy the decree. Neither in the decretal order assigning dower nor in the deed giving effect to Tulley's purchase at the sale under the chancery decree was the 20 acres described in the complaint conveyed. So the legal title to the 20 acres described in the complaint vested and abides in the heirs of A.H. Laird, one of whom the plaintiff is, unless adverse possession, by A.J. Tulley and those who claim through him (the defendants), for the requisite period operated to vest the title to the lands in suit in them, as Tulley's heirs. The court, at the request of the plaintiff, instructed the jury, through charge 5 (which the report of the appeal will contain), that if they believed the evidence, the finding should be for the plaintiff for lots 5 and 6 described in the pleading.

Since the land in suit was not a part of the particular land regularly assigned to the widow of Laird for her dower, the plaintiff cannot have recourse to doctrines that protect the rights of reversioners or remaindermen against the inception or assertion of adverse possession by life tenants. Code, § 3406, and cases noted on brief for appellee. Those doctrines can only have effect when the status for their application actually exists. In short, there must be the relation of tenancy and of reversion or remainder before the preservative effect of those doctrines can be applied or invoked. Here the...