Welch v. Smith
| Decision Date | 28 November 1918 |
| Docket Number | 5 Div. 699 |
| Parties | WELCH v. SMITH et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Coosa County; A.H. Alston, Judge.
Action by L.H. Welch against D. Lonnie Smith and others. Judgment for defendants, and plaintiff appeals. Affirmed.
Geo. A Sorrell, of Alexander City, for appellant.
John A Darden, of Goodwater, for appellees.
Appellant, complainant below, denominates his bill one to remove cloud from title. An examination of the bill, however, shows it to be one under the statute to quiet and determine title and claims to land. Code 1907, c. 127,§§ 5443-5449. The bill, however, as it may properly do, seeks to correct or cancel deeds under which respondents claim title, and thereby remove a cloud from his title.
The respondents answered the bill, setting forth their title or claim as prayed in the bill, and, denying complainant's title, make their answer a cross-bill and ask affirmative relief. The hearing was had on the original bill, answer, cross-bill, and testimony taken by all parties. The trial court denied the original bill and awarded the relief proposed in the cross-bill, deciding that respondents had title and complainant none to the 40 acres of land in dispute, which is the S.E. 1/4 of the N.W. 1/4 of section 7, township 23, range 18 east, in Coosa county, Ala.
Both parties claim title through a common source, Benjamin Calloway. Complainant's theory is that Benjamin Calloway died seized of it, and that title to it passed out of his heirs by an administrator's sale, and then by conveyances on down to complainant. Respondents claim that Benjamin Calloway parted with the title before his death by a deed of conveyance, and that title has by chain of conveyances come down to them; and that this is unquestionably shown, but for errors in the description of the original deed which have permeated all the subsequent ones in this chain of title. Complainant contends there was never any intention to convey the 40 acres mentioned in the deeds, and that this is shown by other descriptions, metes, bounds, and monuments mentioned in the deed; that it was a mere clerical error in writing the government numbers "S.E. 1/4 of N.W. 1/4"; that it was intended and should have been the N.W. 1/4 of S.E. 1/4.
The description of that part of the 40 acres in question, which passed from Benjamin Calloway, the common source, to J.M. Calloway, is far from being definite and certain. With the evidence before us, it is impossible to ascertain the exact part of the 40-acre tract intended to be conveyed. The evidence, however, does satisfy us that some part of it was intended to be conveyed.
The parties evidently treated this deed as conveying that part of the 40 in question that is west of the branch known as Bowden Branch, which is about one-half of the 40. The other part east of...
To continue reading
Request your trial
-
Carr v. Moore
... ... Sou. Ry. Co. v. Hall, ... 145 Ala. 224, 41 So. 135; Gill v. More, supra; Franklin ... v. Snow, 195 Ala. 569, 571, 71 So. 93; Welch v ... Smith, 80 So. 375, 376; Smith v. Gordon, 136 ... Ala. 495, 498, 499, 34 So. 838; Dennis v. McEntire Lumber ... Co., supra, 187 Ala. 317, 65 ... ...
-
Davis v. Daniels
...of the pleading--between the parties to the bill. Code, § 5443; Carr v. Moore, 82 So. 473; Manning v. Manning, 82 So. 436; Welch v. Smith, 202 Ala. 402, 80 So. 375; Pace v. Robertson Banking Co., 202 Ala. 343, 80 425; Kegley v. Rosser, 197 Ala. 109, 72 So. 381; Vidmer v. Lloyd, 193 Ala. 386......
-
Bell v. Strange, 1120603
...plenary power with respect to statutory matters, but only a limited power as to constitutional matters. Johnson v. Craft, [205 Ala. 386, 80 So. 375 (1921)]; Opinion of the Justices[No. 92], 252 Ala. 89, 39 So. 2d 665Page 5(1949). In regard to its powers to change the Constitution, the Legis......
-
Hurt v. Given
...do not include evidence of continuous or persistent cutting, neither do they show that the cutting was sporadic. In Welch v. Smith, 202 Ala. 402, 80 So. 376 (1918), this Court found the following facts sufficient to establish adverse possession: The land at issue was not cleared or fenced, ......