Waters v. Mines

• Decision Date: 22 April 1954
• Docket Number: 1 Div. 501
• Citation: 72 So.2d 69,260 Ala. 652
• Parties: WATERS et al. v. MINES.
• Court: Alabama Supreme Court

Page 69

72 So.2d 69

260 Ala. 652

WATERS et al. v. MINES.

1 Div. 501.

Supreme Court of Alabama.

April 22, 1954.

Barnett, Bugg & Lee, Monroeville, B. E. Jones, Evergreen, for appellants.

Ralph L. Jones, Monroeville, and Frank G. Horne, Atmore, for appellee.

PER CURIAM.

This is a suit by appellee (plaintiff) against appellants (defendants) for the recovery of a house and lot located in Burnt Corn, Monroe County, Alabama. The lot is sixty by two hundred and ten feet and is situated in the N.E. corner of S.E. 1/4 of S.E. 1/4 of S.E. 1/4, section 21, township 7, range 9, and is sometimes referred to as '29.100ths,' meaning presumably that fractional part of an acre.

This is the second appeal. See, Lowrey v. Mines, 253 Ala. 556, 45 So.2d 703. There was another verdict and judgment for Mrs. Mines and the appeal is from that judgment.

The lot had been owned by Mrs. Laura Crook and a mortgage executed by her came into the ownership of Reconstruction Finance Corporation (hereinafter referred to as R. F. C.). A bill was filed in equity to correct the description in that mortgage and in the deed of the lot to Mrs. Crook and the foreclosure of the mortgage. That suit resulted in a decree granting the relief sought. Upon the basis of which a sale was made in foreclosure of the mortgage and the R. F. C. became the purchaser. A deed to the land was executed to R. F. C. by order of the court, dated July 22, 1935. The plaintiff in this case claims that Mrs. Crook had adverse possession of the house and lot after the deed to R. F. C., continuing until Thanksgiving day in November 1945. Her claim is based solely upon such adverse possession.

The evidence tends to show that at the time of the register's deed to R. F. C. on July 22, 1935, the Crooks were not living in the house but were living at the Watkins place in Burnt Corn, about a mile from the house in question, having moved there about 1932, and had rented the house here in question to their daughter Mrs. Mines, the plaintiff, who was living in the house on July 22, 1935. The Mines continued to live in the house until the later part of January or the first of February 1937, when they went to the Watkins place where the Crooks were living. They left their furniture and effects in the house in question. Mr. Mines went to Atlanta seeking work and Mrs. Mines followed him there in June 1937. While in that status and on February 12, 1937 the R. F. C. deeded the house and lot to defendant Lowrey.

The defendants claim that at that time the house was vacant and that there were no effects in it. Whatever its status, it so remained until shortly after June 1937 when Mrs. Crook and her husband moved back into the house and lived there until April 16, 1944 when they moved to Atlanta, leaving Newt Roberson in charge of the house in question. Newt Roberson was a neighbor and agreed to look after the place for them and had the keys. On November 20 (or 23), 1945, the house not being occupied at that time, Sam Lowrey, son of the defendant Lowrey and who lived next door to it, called upon Newt Roberson for possession, which Roberson refused to deliver: whereupon Sam Lowrey broke into the house for his father, defendant, and defendant Lowrey has had possession since then.

Mrs. Laura Crook died June 17, 1946, leaving as her survivors her husband O. M. Crook, a son O. M. Crook, Jr., and a daughter Mrs. Mines and also another daughter. On November 17, 1947, O. M. Crook made a deed to the lot in question to his daughter Mrs. Mines, the plaintiff in this case. Plaintiff's title is therefore dependent upon that of her mother, Mrs. Laura Crook, and her claim of title was solely dependent upon adverse possession during the period extending from July 22, 1935 to November 20, 1945.

It will be noted that this is four months more than ten years. So that her adverse possession must have originated within that period and is to be determined in the light of section 828, Title 7 of the Code. That statute contains certain requirements to justify the acquisition of title by adverse possession. One is color of title and the other is listing of the land for taxation. On the former appeal plaintiff's effort to satisfy that statute related to a claim of color of title, which was the deed she had and the chancery proceeding correcting the description in that deed, which also corrected the description in her mortgage and foreclosed the mortgage as above stated. The court on that appeal held in substance the foreclosure of that mortgage and the deed under its direction prevented Mrs. Crook from having any benefit of them as color of title.

On the second trial, without making further claim of color of title, the plaintiff has undertaken to prove a compliance with section 828, supra, with respect to listing the land for taxation. That statute in this connection provides that the adverse claimant 'shall have annually listed the land for taxation in the proper county for ten years prior to the commencement of the action'. Applying that requirement to the facts of this case it would mean ten years before November 20, 1945 when Mrs. Crook ceased to have possession of the land.

To have the benefit of section 828, supra, in so far as concerns this appeal, there are two principles which must be met. One is that the property must be annually listed for ten years prior to November 20, 1945; and the other is that the possession of Mrs. Crook must not only be open and notorious, but there must be an explicit disclaimer of holding the possession in subordination to the R. F. C. or its purchaser and that disclaimer must be brought home to the actual knowledge of said R. F. C. or its purchaser. In some cases it is said that this may be by such open and notorious acts of ownership as to raise a presumption of notice, the equivalent of actual notice. Lowrey v. Mines, supra; Bellenger v. Whitt, 208 Ala. 655, 95 So. 10; Yancey v. Savannah & Western R. Co., 101 Ala. 234, 13 So. 311.

Our first consideration in this connection is with reference to the listing of the land for taxation in compliance with section 828, supra. In this respect it is pertinent to say that any listing for taxation prior to July 22, 1935, when all the rights and interest of Mrs. Crook were divested out of her, is in the same status as the color of title considered on former appeal. The conveyance of that date divested her of all benefits and claims, good, bad or colorable, which she had at that time except the statutory right of redemption. This included any benefit from listing the land for taxation, which she did on December, 1, 1934 for the year 1935. There is in evidence a copy of the tax list dated December 17, 1935 to Mrs. Laura Crook.

Objection was made to that assessment because it does not describe the property in question. The description and the valuation (the same as for the preceding year) are stricken out with 'X' marks across them, with a memorandum 'check and see if bank of Evergreen has an asst.'. This was the first listing due to be made after the sale of July 22, 1935. There should have been ten annual listings prior to November 20 (or 23), 1945, when Lowrey went into possession, as required by section 828, supra. If there was such a listing as the statute requires each year when it was due to be made on or before January lst, section 37, Title 51, Code, including January 1945, it would be sufficient compliance with that feature of the statute, as we shall show. When the statute requires an annual listing for ten years 'prior to the commencement of the action,' it means of course while the adverse claimant is in possession. It does not mean that there must be a listing beginning at least ten calendar years prior to November 20, 1945, but ten annual tax listings prior thereto in accordance with statutory requirements. The first of the ten listings due to be made must have been after July 22, 1935. This was permitted by law to be done during the period from October lst to December 31, 1935, section 37, Title 51, for the tax year 1936. That counts as one yearly listing within the meaning of section 828, supra. There was another listing due to be made while the adverse claimant was in possession during the same period in each of the years 1936, 1937, 1938, 1939, 1940, 1941, 1942, 1943 and 1944 all prior to November 1945. A listing after November 1945 was after Mrs. Crook had lost possession, and is not here important. Such listings with the one made in December 1935 constitute ten yearly listings of the land prior to entry and seizure of it by the defendant Lowrey in November 1945.

In each such listing the land must ordinarily be sufficiently described to show that it is the property intended to be assessed. Jones v. Mitchell, 258 Ala. 651, 64 So.2d 816. But that requirement is subject to the provision of section 828, supra that: 'An inadvertent failure to list the land for taxation, or any unintentional mistake in the description of the assessment * * * shall not bar the party of his action or defense on his adverse possession.' The description which bears the 'X' marks is that the lot is in the N.E. 1/4 of S.E. 1/4 of S.E. 1/4, whereas it is in the S.E. 1/4 of S.E. 1/4 of S.E. 1/4. A five room house is also assessed. The evidence tends to show that this was an unintentional mistake. We need not detail the circumstances so indicating. The jury was properly instructed as to that. McCraw v. Lindsey, 209 Ala. 214, 95 So. 898.

In the case of Jones v. Mitchell, supra, some trespassers entered upon the land and undertook to divide it between themselves. Each separately claimed a part of it. But there was no accurate description of the part each claimed. And in making the assessment the description did not suffice to locate the tract each claimed. Being trespassers, tax listing was necessary. And that required such description as would support a claim of adverse possession. We observed that the tracts, as attempted to be...