Walker v. Coley

• Decision Date: 21 June 1956
• Docket Number: 1 Div. 651
• Citation: Walker v. Coley, 264 Ala. 492, 88 So.2d 868 (Ala. 1956)
• Court: Alabama Supreme Court
• Parties: L. L. WALKER v. D. R. COLEY, Jr.

Page 868

88 So.2d 868

264 Ala. 492

L. L. WALKER v. D. R. COLEY, Jr.

1 Div. 651.

Supreme Court of Alabama.

June 21, 1956.

The following charges were given for defendant:

'3. The Court charges the Jury that it is a maxim of the law that the party in possession of lands is presumed to have a valid title thereto and this presumption can only be overcome by proving that such party does not have title to the property.'

'a. The Court charges the Jury that under the doctrine of prescription there must be an individual continuous possession of user without the recognition of adverse rights for a period of 20 years, and upon the establishment of such claim and user, the law presumes the existence of all the necessary elements of adverse possession or title without further proof.'

This charge was refused to plaintiff:

'33. The Court charges the Jury that the instant case is a statutory action for ejectment to which the Defendant has pleaded 'not guilty'. I, therefore, charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence that the Plaintiff, L. L. Walker, has demonstrated a prior possession to the properties sued for to which he succeeded by grant, that the burden of proof then shifts to the Defendant, D. R. Coley, Jr., to reasonably satisfy you from the evidence of a better title in him by possession anteceding that under which Walker claims, together with a succession to it by grant, devise or inheritance in Mr. Coley, or by adverse possession.'

Caffey, Gallalee & Caffey, Mobile, for appellant.

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

PER CURIAM.

This is an action of ejectment by appellant against appellee for the recovery of two tracts of land, one of which is approximately 60 acres and is referred to in the complaint as Parcel A, and the other tract of approximately 20 acres is referred to as Parcel B. The trial was had with a jury and a verdict returned for defendant (appellee) with judgment rendered accordingly.

The two tracts are in the South half of Section 38, Township 4 S, Range 2 W by virtue of an irregular survey of that area. This South half of Section 38 is bounded on the west by Sections 27 and 34, so that if the line between Sections 27 and 34 extended east it would lie about the middle of the South half of Section 38.

The title extends back to possession by Margaret Logan, a Negro woman, who lived on the 60-acre tract. That tract is 2,000 feet east and west by 1,371 feet north and south. The south line of it is what would be the extended section line between Sections 27 and 34. The smaller tract is south of and adjoins the larger, being 10 chains (660 feet) east and west by 18 chains (1,188 feet) north and south. Margaret Logan lived on the 60-acre tract for many years prior to March 14, 1914. James Richardson lived in Section 27 adjoining the 60-acre tract on the west.

On March 14, 1914 Margaret Logan executed a deed conveying Parcel A, the 60-acre tract, to James Richardson. Mr. Richardson never had a deed covering the 20-acre tract, Parcel B. But the evidence tends to show that in 1916 he took possession of both tracts. The land was unimproved. There were some trees and bushes on it, and in the main it was unsuitable for cultivation. Richardson fenced both tracts in a pasture in 1916, and cut wood for charcoal and stovewood, and so used it for over 20 years. No one else had possession during that time, except as here shown.

Foster and Lowder of Mobile were realtors and had a power of attorney from one Boruff who lived elsewhere. They seem to have had control of the land east of said 60-acre tract and in the same section. They had an agreement with Richardson, expressed by him as follows:

'A. Well, they bought some property east of me there, you see right east of what I bought from Margaret Logan. Then we all got connected together that way, and they were going to furnish the title for it, and I took their possession, and they furnished the line, and I furnished the fencing and fenced up the east half of it. * * *

'A. Well, that was mine. I bought that from Margaret Logan. If they perfected the title to it all I was going to give them a half interest in that what I bought from Margaret Logan, if they quieted the title to it.

'Q. Was that the reason for your making that conveyance? A. Yes, that was the reason for my making the conveyance.

'Q. Did they pay you anything at all? * * * A. No money transaction. * * *

'(Mr. Coley):

'Q. Now, Jim, did you claim that land as your own all of that time? A. I did.

'Q. Did anybody else ever assert or claim any right to it? A. No, nobody ever claimed any right to it.

'Q. Did Mr. Lowder ever claim any right to it? A. No, he didn't never claim no right. You understand, I tried to get him to take it all over and quiet the title, so I could give him a half interest in it, or he give it to me, either way, but, you know, the east part he bought from Broadus and them.

'Q. The east part, that is between that and Azalea Road, he was claiming that? A. That is right.

'Q. This part back there was yours and you claimed possession of it? A. That is right.

'Q. And he never claimed any right under that deed? * * *

'Q. Did he, or not, ever claim any rights under that deed? Did Mr. Lowder or anybody else ever claim any rights under that deed? A. No, they couldn't claim no rights. They never did fix the title, so they had no rights to it. * * *

'Q. Did I understand you to say you never had had anything to do with Mr. Boruff? A. No, sir, nothing only Foster & Lowder took me and my wife over there on St. Francis Street, and he must have been before a notary public and fixed them papers up, you know.

'Q. That is all you know? A. That is all I know.

'Q. That is all you know of Mr. Boruff? A. That is right.

'Q. And from 1919 then until you sold Sam, Mr. Lowder had never claimed anything? A. No.

'Q. Mr. Boruff never claimed anything? A. No. * * *

'Q. Now, did anybody else during that entire time interfere with you in the possession of that property in any way at all? A. Nobody at all.'

As a part of that agreement Richardson executed a deed to Boruff dated December 4, 1919 conveying both Parcels A and B, which deed recited a consideration of $1. That is the first muniment of title covering Parcel B. Richardson further testified that there was no money consideration. The deed also contained the tract east of the 60 acres, referred to above and not here involved, which Richardson did not claim. On July 15, 1932 Boruff (by attorney in fact) conveyed both Parcels A and B, together with other land, to Bertha H. Stephens: the deed expressing a consideration of $100. On October 8, 1937 Bertha H. Stephens conveyed to Kate Lowder both Parcels A and B and the other land lying east of it for a consideration of $1 and other valuable consideration.

On January 3, 1950 Kate Lowder conveyed to A. B. Case the entire South half of Section 38, which includes Parcels A and B and the other tract referred to above for a consideration of $25.

On February 28, 1952 A. B. Case conveyed to L. L. Walker (this plaintiff) Parcels A and B for a named consideration of $1 and to replace a lost deed. There is evidence that none of these parties ever had possession of Parcel A or B, and that no claim of any kind was ever asserted by Boruff, Stephens or Lowder.

Parcel B.

Plaintiff's claim is dependent upon James Richardson who never had color of title to Parcel B. But defendant also claims under James Richardson. There is evidence that in 1916 James Richardson took possession of Parcel B along with Parcel A, although he had a deed which only covered Parcel A. Although Parcel B was included in his deed to Boruff in 1919 Richardson continued in possession without interruption or dispute until he sold it to his nephew Samuel Richardson. Samuel Richardson had taken possession several years prior to July 23, 1934 (about 1929) when he received a deed from James Richardson. Samuel Richardson built a house and lived on the land and finished paying for it when he received his deed. He sold to defendant in 1946, and defendant has been in uninterrupted possession of it since then.

Parcel A.

As to Parcel A, James Richardson had possession of it without interruption or dispute until March 7, 1944, when he sold and conveyed it to his nephew Samuel Richardson and put him in possession. Samuel Richardson continued in the uninterrupted possession until he sold it, along with Parcel B, to defendant and made a deed to him on September 6, 1946; and defendant has had the uninterrupted possession since then.

It will be observed as to Parcel A that Samuel Richardson bought and went into possession of it less than ten years before this suit was begun on September 23, 1953. But there is evidence that James Richardson had a deed from Margaret Logan in 1914, and that she was in possession of the tract then, and that he had possession since that time or until 1944 when he sold it to his nephew Samuel Richardson. As to Parcel B the evidence tends to show that Samuel Richardson and defendant had adverse possession tacked together, both under recorded color of title, more than ten years before the suit was begun. That is sufficient to support a verdict for defendant as to Parcel B under section 828 (adverse possession), Title 7, Code.

In respect to Parcel A, it is necessary to consider some appropriate principles of law with reference to possession by a grantor after the execution of a deed. The general rule relied upon by appellant is thus stated by our cases:

'It is the well-settled rule that by the execution and delivery of a deed the entire interest vests in the grantee, and, if the grantor continues in possession afterward, his possession will be that either of tenant or trustee of the grantee. He will be regarded as holding the premises in subserviency to the grantee, and nothing short of an explicit disclaimer of such relation and a notorious assertion of right in himself will be...