White v. Williams

• Decision Date: 14 January 1954
• Docket Number: 1 Div. 499
• Citation: 260 Ala. 182,69 So.2d 847
• Parties: WHITE et al. v. WILLIAMS et al.
• Court: Alabama Supreme Court

Page 847

69 So.2d 847

260 Ala. 182

WHITE et al. v. WILLIAMS et al.

1 Div. 499.

Supreme Court of Alabama.

Jan. 14, 1954.

A. S. Johnson and W. Johnson McCall, Thomasville, Paul S. Jones, Grove Hill, for appellants.

Adams & Gillmore, Grove Hill, and Taylor, Higgins, Windham & Perdue, Birmingham, for appellees.

This charge was given at plaintiffs' request:

'21. The court charges the jury that the payment, if any, by Mrs. D. H. White of any debt owed by Mr. White at the time of his death did not give her any interest in the real estate owned by him.'

The following charges were refused to plaintiffs:

'B. The court charges the jury that where one claims title by adverse possession without color of title and there is no evidence that the adverse holder paid taxes for ten consecutive years, then the adverse holder must have asserted a disavowal of the title of the owner and brought this hostile claim to their knowledge for a period of twenty consecutive years.

'10. The court charges the jury that if you believe from the evidence that Mrs. D. H. White did not make it known to the heirs of D. H. White that she was asserting a title hostile to theirs you cannot find for the defendants.

'13. The court charges the jury that possession by a widow under her right of quarantine is not adverse in absence of evidence that she made known to the heirs of her deceased husband that she was asserting a hostile title.'

The following charge was given for defendants:

'2. I charge you, Gentlemen of the jury, that if you are reasonably satisfied from the evidence that Mrs. Julia A. White openly claimed complete ownership of the property involved in this litigation from the time of her husband's death until her own death, and that that fact was known to the heirs of her deceased husband, then your verdict should be for the defendants.'

CLAYTON, Justice.

This is an action in ejectment by the heirs of David H. White against the personal representatives and general devisees of Julia A. White, concerning certain property in Thomasville, Alabama, referred to as the White Hotel property. David H. White and Julia A. White were husband and wife, living in and operating the White Hotel at the death of Mr. White in 1923. Mr. White died intestate and without issue. Mrs. White continued to occupy the property and operate the hotel either in person or through tenants until her death in 1948. It is undisputed that the record title to the property is in the name of D. H. White; nor is it disputed that Mrs. White enjoyed continuous possession of the property from Mr. White's death until her own. The case for those claiming under Mrs. White depends upon whether or not her possession since 1923 perfected title in her by prescription or adverse possession. The property involved consists of about one-half of Block D upon which was located the White Hotel and a small house to the rear of it.

There was no administration upon the estate of Mr. White nor was homestead or dower ever set apart to Mrs. White. The actions of Mrs. White, which are asserted by those claiming under her as the basis of their claim to present ownership, are substantially as follows: After Mr. White's death, she sold forty or fifty cattle and paid a note and mortgage executed by Mr. White and secured by them; she paid off a mortgage on the White Hotel property which had been executed by Mr. White; she paid a number of notes and accounts owed by Mr. White at his death; she tore down a small house which was located on the White Hotel lot and used the material therefrom in building another house on a lot owned by her individually; she built a small house and shop on a part of the White Hotel lot. In addition, there was some evidence of her having paid some taxes on the property in the testimony of her sister, Mrs. McCoy. Mrs. McCoy was one of the general beneficiaries, under the last will and testament of Mrs. White, which was executed in 1947 and admitted to probate in 1949. This will makes no specific mention of the White Hotel property. It was also shown that Mrs. White, in 1939, executed a will by which she would have devised the hotel property to some of her blood kin, but this will was not her last will and testament. Furthermore, it was not shown that the fact of the execution of this will was ever known or suspected by any of the heirs of Mr. White until the trial of this case. Several witnesses who were interested in the outcome of the suit testified that Mrs. White had made statements to the effect that the hotel property would go to the heirs of Mr. White after her death, that she only owned a life estate in the hotel property, etc. Also, one or more disinterested witnesses testified that Mrs. White made similar statements in 1938 or 1939, and on other occasions as late as 1948. Conversely, several of the beneficiaries under Mrs. White's will testified that it was common knowledge that Mrs. White claimed to own the hotel all the time, that it was their impression that she claimed to own the hotel, and one of her brothers testified that he knew that one of Mr. White's heirs knew that she claimed to own the hotel.

A decision in the case depends upon the answers to the following questions: Did Mrs. White's possession at any time become hostile to the heirs of Mr. White? Did they have knowledge or notice of the hostile character of this possession, or was notice or knowledge imputed to them? And, did this hostile possession continue for the prescriptive period of twenty years, or was it of such character and duration as to bring it within the comprehension of our adverse possession statute--Section 828, Title 7, Code of Alabama 1940?

The able trial judge very properly submitted to the jury for determination the question as to whether or not Mrs. White's control of the property and exercise of dominion over it, subsequent to the death of her husband in 1923, was of such character as to perfect legal title in her by possession which was adverse to the heirs of Mr. White. Mobile & G. R. Co. v. Rutherford, 184 Ala. 204, 63 So. 1003; Hodges v. Sanderson, 213 Ala. 563, 105 So. 652.

Our statute on adverse possession, Title 7, Section 828, is as follows:

' § 828. (6069) (2830) (1541-1546) Adverse possession, etc.--Adverse possession cannot confer or defeat title to land unless the party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded in the office of the judge of probate of the county in which the land lies for ten years before the commencement of the action; or unless he and those through whom he claims shall have annually listed the land for taxation in the proper county for ten years prior to the commencement of the action, if the land is subject to taxation; or, unless he derives title by descent cast, or devise from a predecessor in the title who was in possession of the land. * * *'

Mrs. White's original possession of the property is presumed to have been under her quarantine rights. Branford v. Shirley, 241 Ala. 314, 316, 2 So.2d 403. She was entitled to retain this possession by virtue of such rights until such time as her homestead and dower might be allotted to her. Section 7437, Code of 1923, Code 1940, Tit. 34, § 50.

'We recognize the rule that a widow so circumstanced may acquire title by adverse possession.' Branford v. Shirley, supra [241 Ala. 314, 2 So.2d 405].

'The theory upon which adverse possession becomes a perfect title is that the true owner has by his own fault and neglect failed to assert his right against the hostile holding for the full period of the statute.' Lecroix v. Malone, 157 Ala. 434, 441, 47 So. 725, 728.

However, it has been declared by this court that 'All presumptions and intendments are favorable to the title, and possessions are not presumed to be hostile, but rather in subordination to it.' Dothard v. Denson, 72 Ala. 541, 544.

The burden of proving possession adverse rests upon the party asserting it. Dothard v. Denson, supra.

It is also held that the doctrine of prescription does not apply to cases where possession is permissive or in recognition of title. Kidd v. Browne, 200 Ala. 299, 76 So. 65. The theory of title by adverse possession is based on the neglect of the true owner to assert his rights against a hostile possessor for the period of limitation, and consequently a permissive possession does not ripen into title unless there has been such a repudiation of the permissive possession as to afford notice of an adverse claim. 2 C.J.S., Adverse Possession, § 87, p. 641, Smith v. Collier, 210 Ala. 23, 97 So. 101, Lecroix v. Malone, supra. It is further said that limitations begin to run from the date of notice of hostility but are not operative before hostility is shown. 2 C.J.S, Adverse Possession, § 87, p. 641. Whether the possession was with the intention of claiming title is generally held to be a question for the jury. Mobile & G. R. Co. v. Rutherford, 184 Ala. 204, 63 So. 1003; Hodges v. Sanderson, 213 Ala. 563, 105 So. 652.

While acts, such as are usually done or performed only by the owner, or one asserting ownership, are legal evidence to go before the jury on the question of adverse holding, or of asserted claim of right, they are still only evidence to be weighed against the other evidence. They are not the equivalent of a claim of right. The latter is a conclusion of fact, to be found, or not found, by the jury; the former is only testimony tending to prove such fact. Humes v. Bernstein, 72 Ala. 546, 556.

In the absence of a clear positive and continuous disclaimer and disavowal of the title fo the true owner brought home to the latter's knowledge a permissive occupant cannot change his possession into adverse title no matter how long possession may be continued. 2 C.J.S., Adverse Possession, § 87, p. 642; Lay v. Fuller, 178 Ala. 375, 59 So. 609.

To change a permissive or otherwise nonhostile possession into one that is hostile, there...