Turner v. Turner

• Decision Date: 23 January 1919
• Docket Number: 5 Div. 711
• Citation: 81 So. 17,202 Ala. 515
• Parties: TURNER et al. v. TURNER et al.
• Court: Alabama Supreme Court

81 So. 17

202 Ala. 515

TURNER et al. v. TURNER et al.

5 Div. 711

Supreme Court of Alabama

January 23, 1919

Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.

Bill by J.M. Turner and others against L.L. Turner and others. From decree for defendants, complainants appeal. Affirmed.

James W. Strother, of Dadeville, for appellants.

George A. Sorrell, of Alexander City, for appellees.

SAYRE J.

More than 45 years ago Jesse M. Turner died seized and possessed of a tract of 510 acres of land in Tallapoosa county. Deceased left surviving him his widow, Sarah P. Turner, and five children. He left a will, of which his widow was nominated and appointed sole executrix, directing that she sell his property, real and personal, and divide the proceeds equally between herself and the children, each child to receive his or her share on arriving at legal age. Executrix made an effort to sell the land through the agency of the probate court, and became the purchaser at the sale so procured; but it seems that no deed was made to her, and, in any case as to that, the title remained unaffected by that proceeding. Wilson v. Holt, 83 Ala. 528, 3 So. 321 3 Am.St.Rep. 768; Snow v. Bray, 73 So. 542. In 1916 appellants, children of J. Fletcher Turner, then deceased grandchildren of Jesse M. Turner, filed this bill praying for a sale in lieu of partition of a tract of land consisting of 400 acres of the land left by Jesse M. Originally A.G. and E.A. Turner were made parties defendant; but, each of the named defendants having answered denying any right, title, or interest in the land, and the answer of A.G. showing that he had claimed to own the land in severalty, but had disposed of his interest to L.L. Turner, his wife, the bill was amended so as to bring her in as a party defendant.

Very satisfactorily the proof showed that shortly after the proceeding in the probate court, in 1872 or 1873, Sarah P Turner undertook to set apart to Fletcher Turner--so the witnesses commonly referred to J. Fletcher Turner--as his share of his father's estate, 100 acres of the land left by her husband, and that he purchased of her 10 acres besides; but this transaction probably rested in parol; at least no deed is shown in evidence. However, Fletcher went into possession, and it seems that his ownership, thus acquired, has never been questioned. In 1884 or 1885 the interests of Sarah P. and E.A. passed into A.G. and John J the children, other than those named, having died. All this was probably by parol; but A.G. and John J. went into possession and so remained until 1889, when the latter died. Thereupon A.G., on consideration that he would pay, as he did, the debts of John J., took over the interest of John J from their mother--this, too, apparently by parol. From the date of this last-mentioned transaction down to the filing of...