Vidmer v. Lloyd

• Decision Date: 10 June 1915
• Docket Number: 820
• Citation: 69 So. 480,193 Ala. 386
• Parties: VIDMER et al. v. LLOYD.
• Court: Alabama Supreme Court

69 So. 480

193 Ala. 386

VIDMER et al. v. LLOYD.

No. 820

Supreme Court of Alabama

June 10, 1915

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Bill to quiet title by Thomas L. Lloyd against John R. Vidmer and others. Decree for complainant, and defendants appeal. Affirmed.

See also, 184 Ala. 153, 63 So. 943.

Gordon & Edington and Ervin & McAleer, all of Mobile, for appellants.

Webb &amp McAlpine, of Mobile, for appellee.

GARDNER J.

Appellee, Thomas L. Lloyd, filed this bill against John R. Vidmer and others, appellants, to quiet the title to a tract of land in Mobile county, Ala., described as "section 14, township 5 south, range 2 west of Mobile county." The averments of the bill were in conformity with the requirements of our statutory provision in cases of this character. Code, § 5443 et seq.

The answer of the appellants admits the peaceable possession of the land at the time of the filing of the bill, and that there was no suit pending to test the validity of the title. These admissions made out a prima facie case, entitling complainant to the relief sought. Kendrick v. Colyar, 143 Ala. 597, 42 So. 110. In the second paragraph of the answer the respondents, who are appellants here, set up, by way of propounding their title or claim to the land, that they are the heirs of one Adele Rabby, who went into possession of this property in the year 1866 and held the same under deeds from Harriet McGill, William Vickers, W.H. Sadler, and T.F. Riley. The answer then avers that the said Adele Rabby "lived on said premises for years, built a house there, and farmed and used the same," etc.; "that in 1872 she died intestate, leaving no children, but survived by her husband, Jacob M. Rabby; that said J.M. Rabby thereafter executed deeds to the complainant to the said land."

Such is the substance of the answer. As paragraph 1 of the answer, by its admissions, made out a prima facie case for the complainant, the burden was upon the respondents to establish their claim to the land. The sufficiency of the answer was challenged by the complainant in the court below for its failure to allege or show with sufficient definiteness the title of the respondents under the provisions of section 5445 of the Code of 1907. While the sufficiency of the answer may be seriously questioned, yet there was no ruling by the court upon the objections raised thereto, and we pass the matter by without further notice.

The controverted question as to the ownership of the land was before this court on appeal from the trial in an ejectment suit, and is found treated in Vidmer v. Lloyd, 184 Ala. 153, 63 So. 943. The opening paragraph of the opinion in that case is applicable upon this appeal, and reads as follows: "The undisputed evidence shows that this defendant was in the actual possession of the land sued for, claiming it as his own, for about 40 years. This being true, such possession on his part, without recognition of any claim, right, or title of another, would operate as an absolute repose under the doctrine of prescription. Roach v. Cox, 160 Ala. 425, 49 So. 578, 135 Am.St.Rep. 107, and cases there cited."

The burden of proof, therefore, was upon the respondents to establish a title in Adele Rabby superior to that of the complainant, and in so establishing to offer proof which would overcome the long-continued possession of the complainant under his open and notorious claim of ownership. To this end the respondents insist that they have proven a superior title by showing the prior actual possession of Adele Rabby and her husband, J.M. Rabby, under a quitclaim deed to Adele Rabby from one Harriet McGill, executed in 1866, and a deed from J.M. Rabby to complainant, executed after the death of the said Adele Rabby; the contention being that Adele Rabby had such an interest in the property as that the husband acquired a life estate therein at her death, that his deed to complainant conveyed only such life interest therein, and that, as said J.M. Rabby died in 1909, they, the remaindermen, are not barred.

The evidence in the case has been carefully examined, and we are reasonably satisfied of the following facts established thereby: That J.M. and Adele Rabby went into possession of this property in 1866, under a quitclaim deed of Harriet McGill; that Harriet McGill derived her title from the will of her husband, duly admitted to probate in November, 1864, and that under said will Harriet McGill received a life estate; that the title of her husband appears to have been a tax certificate of the tax collector of Mobile county, showing a sale of said land for taxes, assessed against owner unknown, due on the property, and certifying that the said William McGill purchased it at such sale. It is not shown that the said McGills were ever in possession of, or exercised any acts of ownership over, the property. It further appears that Harriet McGill died in 1896.

We are reasonably satisfied from the evidence in the record that Adele Rabby and her husband, J.M. Rabby, late in 1869 or early in 1870, after having been in possession of the property only since the year 1866, moved therefrom and established another home some six miles distant, and that upon their abandonment of these premises, and almost immediately thereafter, complainant, Thomas L. Lloyd, went into possession of the property and, to use the expression of the witness, "squatted" thereon, and that the said Lloyd has been in the open, notorious, visible, and adverse possession of the said property from that time to the present day, and that he did not acquire possession from either of the said Rabbys, but merely "took possession." We are convinced that Adele Rabby never again occupied this property, or exercised any ownership over it, and that she died while making her home at the place to which they removed, as stated.

We are further of the opinion that the evidence sufficiently establishes the facts that the complainant purchased from J.M. Rabby under a contract whereby he was to acquire a "clear title"; that these negotiations were had while complainant was in possession of the property, and when he was aware of the fact that Adele Rabby had only a deed from one claiming a life estate, and was therefore in no position to convey a good title; and that J.M. Rabby agreed for a consideration of $900, to acquire a "clear title" and convey the same to complainant. We are persuaded that this contract was made with J.M. Rabby, and not with Adele Rabby, and that the full purchase...