Weston v. Weston

• Decision Date: 08 October 1959
• Docket Number: 4 Div. 971
• Citation: 269 Ala. 595,114 So.2d 898
• Parties: I. V. WESTON, Jr., Executor, v. G. H. WESTON.
• Court: Alabama Supreme Court

Page 898

114 So.2d 898

269 Ala. 595

I. V. WESTON, Jr., Executor, v. G. H. WESTON.

4 Div. 971.

Supreme Court of Alabama.

Oct. 8, 1959.

A. B. Robertson, Jr., Clayton, Chauncey Sparks, Eufaula, for appellant.

Crews Johnston and Jack W. Wallace, Clayton, for appellee.

LAWSON, Justice.

This is an appeal from a final decree of the Circuit Court of Barbour County, in Equity.

I. V. Weston and G. H. Weston were adjoining landowners in Barbour County. By separate written instruments each of them gave to the D. M. Wilson Bauxite Company the right to mine iron ore and to erect and operate an iron ore washer on his land.

The Bauxite Company agreed to pay so-called washer fees to the owner of the land upon which the washer was ultimately erected.

After the washer was completed and in operation it was determined that a part of it had been erected on land which I. V. Weston and G. H. Weston both claimed to own and which was embraced in the lease which each of them had executed to the Bauxite Company. The other part of the washer was erected on land which unquestionably belonged to I. V. Weston.

I. V. Weston claimed all of the washer fees on the theory that the washer had been erected entirely on his land.

G. H. Weston, contending that a part of the washer had been constructed on his land, claimed some of the washer fees.

In order to settle their adverse claims to the washer fees, the Bauxite Company filed a bill of interpleader pursuant to Equity Rule 36, Code 1940 Tit. 7 Appendix, against I. V. Weston and G. H. Weston.

I. V. Weston in his answer to the bill of interpleader alleged ownership and possession of the disputed area and claimed all of the washer fees.

G. H. Weston filed an answer which he made a cross bill wherein he alleged fee simple title to the disputed area and claimed a part of the washer fees. The Bauxite Company and I. V. Weston were made parties respondent to the cross bill. Both answered the cross bill. In his answer I. V. Weston alleged ownership and possession of the disputed area and again claimed all of the washer fees. The contents of the answer of the Bauxite Company to the cross bill need not be stated.

The cause came on for hearing before the chancellor and a jury, which was requested by G. H. Weston. § 322, Title 7, Code 1940.

During the course of the trial I. V. Weston died. I. V. Weston, Jr., as executor of the estate of I. V. Weston, was substituted in his stead. Act No. 708, General Acts 1947, p. 543 (1955 Cum.Pocket Part, Vol. 2, Code 1940, p. 34, where the compiler and publisher of the Pocket Part refers to the provisions of the 1947 act as § 153(1), Title 7); Equity Rule 35. See Ex parte Little, 266 Ala. 161, 95 So.2d 269.

The trial court decreed that the disputed area belonged to G. H. Weston and that the washer fees be divided equally between I. V. Weston, Jr., as executor, and G. H. Weston.

I. V. Weston, Jr., as executor, has appealed to this court.

Appellant contends that even if it be determined that his intestate did not have paper title or title by adverse possession, his lease should prevail for he was holding the disputed area adversely at the time the leases were executed and the G. H. Weston lease was therefore void.

This insistence seems to be grounded on the statements found in some of our early ejectment cases to the effect that a conveyance of lands which are, at the time of the conveyance, in the adverse possession of a third person, under claim of title, is void as against the adverse holder, and will not sustain an action of ejectment against him to recover possession. Sharp v. Robertson's Ex'rs, 76 Ala. 343; Stringfellow v. Tennessee Coal, Iron & R. Co., 117 Ala. 250, 22 So. 997.

Even if it be conceded that the evidence shows that appellant's intestate was holding the disputed area adversely at the time the leases were executed and that the rule of the Sharp and Stringfellow Cases could ever have applied to a case of this kind, that rule can have no effect here, for it has been abrogated by statute as to conveyances executed subsequent to the effective date of § 3839, Code 1907, now § 938, Title 7, Code 1940. See Williams v. Muckelroy, 221 Ala. 531, 129 So. 476; Grayson v. Muckleroy, 220 Ala. 182, 124 So. 217; Spradling v. May, 259 Ala. 10, 65 So.2d 494.

Moreover, the whole course of the trial and the decree itself show that the issue was upon the title to the disputed area and we are impelled to so regard that as the issue here. Phillips v. Phillips, 186 Ala. 545, 65 So. 49. A case will not be reviewed on a theory different from that on which it was tried below. Ellerbee v. Atlantic Coast Line R. Co., 258 Ala. 76, 61 So.2d 89; Inter-Ocean Ins. Co. v. Banks, 268 Ala. 25, 104 So.2d 836.

We have two parties who claim a tract of land which is included in the chains of title claimed by each of them. Neither has shown title back to the government.

The first deed under which I. V. Weston claimed title is dated Novemeber 23, 1905. it is from F. B. Pierce to Aaron Price and includes in the description the area in dispute.

Contrary to the insistence of counsel for appellant, there is no legal evidence going to show that F. B. Pierce purchased the property from one B. B. McKenzie. Appellant's witness F. D. Veal did testify to the effect that F. B. Pierce told him that he purchased the property from B. B. McKenzie. It is our understanding of the record that this statement will not be considered by us, for we are considering here only such testimony as is relevant, material, competent and legal. Act No. 101, approved June 8, 1943, General Acts 1943, p. 105; 1955 Cum.Pocket Part, Code 1940, Title 7, § 372(1); Redwine v. Jackson, 254 Ala. 564, 49 So.2d 115. A party in possession of land may make declarations explanatory of his possession, and either may claim or disclaim ownership, no matter who may be parties to the suit. However, his declarations as to the source of his title and as to past transactions, or contracts in respect thereto, are not admissible. Granade v. United States Lumber & Cotton Co., 224 Ala. 185, 139 So. 409; Shelton v. Stapler, 219 Ala. 15, 121 So. 34; Doe ex dem. Hooper v. Clayton, 81 Ala. 391, 2 So. 24; Dothard v. Denson, 72 Ala. 541; Daffron v. Crump, 69 Ala. 77.

Aaron Price on May 31, 1937, executed a deed wherein he attempted to convey certain property to his daughter Maude, the wife of I. V. Weston.

On June 30, 1948, Mrs. Maude P. Weston executed a deed to her husband, I. V. Weston, wherein the disputed area is described along with other lands.

But the record before us does not show that Mrs. Maude P. Weston acquired the area in dispute in the deed from her father under date of May 31, 1937. The description in that deed reads as follows: 'That certain part of the tract of land known as the McKenzie land lying N. E. of Louisville, Alabama, and being bounded as follows to wit. On North by land owned by W. A. Bell. On East by M. N. McEachern and M. L. Beasley or Did Hurst land. On South by M. N. McEachern and A. R. Andrews lands and on the East by lands of J. H. Blair and lands this day deeded to Maggie Green. Said tract of land in this deed is two hundred fifteen acres more or less and all being in Barbour County, Alabama.'

This description if aided by extrinsic evidence might be sufficient to identify the lands conveyed. See Eufaula National Bank v. Pruett, 128 Ala. 470, 30 So. 731; Scott v. McDonald, 249 Ala. 464, 31 So.2d 351; Lavender v. Ball, 267 Ala. 104, 100 So.2d 331, and cases there cited.

But this record does not contain any such extrinsic evidence. There is some evidence tending to show that the property acquired by Aaron Price from F. B. Pierce was sometimes referred to as the McKenzie place. But Aaron Price in his deed to Mrs. Maude P. Weston attempted to convey only a part of the McKenzie place and there is nothing in this record which identifies the part he intended to convey or which tends to show that the area in dispute is included within the boundaries referred to in the description.

There is no evidence in this record going to show that Bell, McEachern, Beasley, Hurst, Andrews or Blair owned and lands near Louisville, Alabama, or at any other place at the time the deed was executed. The record does not show the lands conveyed to Maggie Green. It is also noted that no western boundary is included in the description. In regard to the eastern boundary, the evidence in this case shows that the lands to the east and northeast of the Price lands were owned by the Flournoys in 1937 and no mention is made of that fact in the description.

Appellant introduced in evidence a 'Map of the Ivy Weston Land' made in May, 1948, by C. A. Pickett, a registered surveyor. This map indicated that the area in dispute belonged to Ivy Weston.

But Ivy Weston did not secure his deed until June 30, 1948, at least a month after the map was made.

The surveyor, Pickett, was not called as a witness and there is nothing in the record before us to support a conclusion that the map was based on the description included in the 1937 deed from Aaron Price to Maude P. Weston.

The deed from Aaron Price to Maude P. Weston purported to convey 215 acres more or less. The deed from Maude P. Weston to I. V. Weston covers approximately 238 acres. The area in dispute is twenty-four acres, approximately the amount of the excess of land described in the deed from Mrs. Weston to her husband over that purported to be conveyed in the deed to her from her father, Aaron Price.

It seems to be conceded that appellee, G. H. Weston, has shown an unbroken chain of paper title dating back to January 13, 1881, when one D. McKenzie conveyed the land in question to his daughter, Mrs. Susan Flournoy, and three of her children. The deed of June 18, 1839, by one Daniel McKenzie to one Bethune B. McKenzie, which appellant introduced in evidence for the purpose of showing that D. McKenzie in 1881 had no title to the area in dispute, was not recorded until ...