Watson v. Price

• Decision Date: 03 March 1978
• Citation: 356 So.2d 625
• Parties: David L. WATSON and Zora Watson v. Grady L. PRICE, Jr., and Barbara C. Price, Ida Belle Young, Intervenor. SC 2474.
• Court: Alabama Supreme Court

Page 625

356 So.2d 625

David L. WATSON and Zora Watson v. Grady L. PRICE, Jr., and Barbara C. Price, Ida Belle Young, Intervenor.

SC 2474.

Supreme Court of Alabama.

March 3, 1978.

Rehearing Denied April 7, 1978.

R. S. Hill, Jr., Robert S. Hill, III, Montgomery, for appellants.

D. Coleman Yarbrough, Montgomery, for intervenor.

JONES, Justice.

This appeal, from a decree fixing the boundary line between the parties, challenges the trial Court's application of the "tacking of adverse possession" principle to facts essentially undisputed. The question for this Court's decision may be stated in the context of Appellants' contention, thusly: The trial Judge erred in permitting Appellees to tack the period of adverse possession of their predecessor in title where such prior owner had acquired title by the requisite adverse possession period, but failed to include the disputed strip in the instrument of conveyance. Therefore, contend Appellants, because the disputed strip lies between the respective properties, the parties are not coterminous landowners and the ten-year statute (Tit. 7, § 828) is inapplicable.

Counsel for Appellants, in brief, aptly summarizes the factual background which they contend renders the "tacking" principle inapplicable.

"Young (Appellee) testified that Dr. Sorrell (Young's predecessor in title) purchased the property in Section 32 in 1944 . . . and that the fence across the section line in Section 5 was in existence at that time . . . . If, as appellees contend, Dr. Sorrell held the land in Section 5 which is in dispute as an adverse possessor . . ., then he would have gained title to it by adverse possession in 1954, long before his contract of sale to Young in 1962 . . .."

Then, Appellants quote Mr. Justice Foster in Spires v. Nix, 256 Ala. 642, 644-645, 57 So.2d 89, 92 (1952):

"The trouble about the application of this theory (privity of possession, allowing tacking) to the status of complainant in this case is that it contemplates a situation where the prior claimant by adverse possession had not acquired the title to the property at the time of his conveyance to the complainant but only acquired a status of adverse possession which could lead to a title in complainant when tacked to her possession subsequently occurring. If the Robertsons had acquired the title by adverse possession at the time of the conveyance to complainant, that title could only pass to the complainant by a sufficient conveyance or by the status of adverse possession for the required length of time by the complainant subsequent to her conveyance from them."

Next, Appellant's brief correctly analyzes two subsequent cases thusly:

"In McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160 (1954), this Court reversed and rendered a trial court's determination of a disputed boundary line. The opinion by Mr. Justice Lawson, with Chief Justice Livingston and Justices Stakely and Merrill concurring, stated that title to the disputed strip of land between Complainant and Respondent had been gained through adverse possession by Complainant's predecessor in title. Since the strip was not contained in the description of the conveyance to Complainant, the title to the strip was not conveyed and remained in Complainant's predecessor in title. Complainant and Respondent were, therefore, not coterminous land owners and the complaint should have been dismissed by the trial Court.

"The case of Carpenter v. Huffman, 294 Ala. 189, 314 So.2d 65 (1975), was frequently cited throughout the brief submitted for cross-complainants-appellees Young and Price. In that 1975 decision, this Court recognized the principles referred to above:

" 'We agree that ordinarily title to land gained by adverse possession must be included in the deed of conveyance in order for it to effectively pass to the grantee. But where, as here, the predecessors of Mrs. Huffman had not yet gained title to the disputed strip at the time of their conveyance to her but had possessed it adversely, the failure to include in the deed the description of the disputed strip would not of itself disallow tacking.' (294 Ala., at 191, 314 So.2d 65.)"

The Appellant concludes:

"Following the principle uniformly stated in the above cited cases and others, the disputed strip must have been in the description in the conveyance from Sorrell to Young in order for Sorrell's interest in that land to pass to Young. The uncontroverted evidence is that the disputed strip in Section 5 was not so conveyed. Sorrell only deeded land in Section 32. Therefore, by their own testimony, and the evidence presented, it is clear that cross-complaints received no interest in the disputed strip from Sorrell."

The difficulty lies not in our disagreement with the Appellant's analysis of the Court's holdings in Spires and McNeil ; rather, we are constrained to disagree with the conclusion that the instant case is due to be reversed on the authority of these prior cases.

We will not indulge the pretense that our case law is without confusion or that the cases are readily reconcilable on any reasonable basis. That the tacking principle and its application are unclear is dramatized in Spires where the Court declined to allow tacking (though affirming a decree based on adverse possession on other grounds) without any reference to whether the claimant was placed in possession of the disputed area by his immediate grantor.

Fortunately, however, subsequent case law has shed sufficient light on this problem for resolution of the instant case. Mr. Justice Merrill, speaking for the Court in Graham v. Hawkins, 281 Ala. 288, 202 So.2d 74 (1967), applied, in a similar factual context, the tacking principle:

"Since each grantee holding under (their predecessors in title) entered into possession of the whole area up to and including the fence, and each transferred his legal paper title to his successor who went into possession up to the fence, the deed, taken into consideration with such transference of possession, was sufficient to raise the privity essential to the tacking of all the possessions from and including (their predecessors in title) to the appellees." 281 Ala., at 292, 202 So.2d at 77.

Later, the Graham holding was summarized in Carpenter v. Huffman, 294 Ala. 189, 192, 314 So.2d 65 (1975):

"Thus, Graham stands for the applicable proposition that when the grantee is put into actual possession of the disputed land adversely held by his immediate grantor, sufficient privity is established to allow tacking."

In the instant case, the boundary line contended for by Appellees was well defined by a fence that ran generally parallel to the East/West section line described in the deeds of the respective parties. By the undisputed evidence, Dr. Sorrell was in possession of, and using, the property south of the section line up to the fence at the time he contracted to sell to Mrs. Young; and he placed Mrs. Young in actual possession of the entire property, including the now disputed strip. While Carpenter's summary of Graham may have been unnecessary to the holding in Carpenter, Graham stands as direct authority for our affirmance of the trial Court's decree allowing tacking under the facts of the instant case.

Because the application of the tacking principle is confusing under our present case law, we deem it appropriate to restate the principle and articulate the rationale for the rule. For the purpose of effecting title by adverse possession, where all the traditional elements are present, tacking of periods of possession by successive possessors is permitted against the co-terminous owner seeking to defeat such title, unless there is a finding, supported by the evidence, that the claimant's predecessor in title did not intend to convey the disputed strip. We hold that this rule should apply even though the conveying instrument contains no legal description of the property in question, and irrespective of the period for which the property was possessed by the present claimant's predecessor in title. We perceive no logical or practical reason why the application of the privity of possession rule permitting tacking should be dependent upon whether the claimant's immediate grantor possessed the disputed property for more or less than the statutory period.

Close analysis of the problem reveals two basic reasons supportive of the rule.

1) If privity of possession were not recognized thus rendering tacking impermissible prior owners, who had possessed and used the questioned property adversely for the requisite period, but whose deed omitted any descriptive reference to such property, would retain title to property which ordinarily he obviously intended to convey. Absent tacking, the number of small, landlocked parcels of land throughout the state the title to which in most cases would be impossible to trace would stagger the imagination.

2) The second reason for the liberal tacking rule can be best illustrated in the context of the present case. If the late Dr. Sorrell acquired title by adverse possession of the disputed strip before he conveyed title to Mrs. Young; if his conveyance contained no description south of the section line; and if these circumstances defeat tacking, would not the following inquiry be pertinent? What are these parties doing fighting over property to which neither has a legitimate claim? Are not the Sorrell heirs necessary parties to this action? Indeed, the McNeil Court, not permitting tacking, answered these questions by ordering the dismissal of the cause.

This is not to say that the prior owner, who conveys by the same legal description contained in the grant from his predecessor in title, necessarily conveys title to property gained by adverse possession. Unquestionably, among other options, he may retain title in himself; but any contest as to this issue should be between such grantor and his grantee, and not some third party.

Furthermore, nothing herein should be construed...