Winsett v. Winsett

Citation83 So. 117,203 Ala. 373
Decision Date12 June 1919
Docket Number8 Div. 164
PartiesWINSETT et al. v. WINSETT.
CourtSupreme Court of Alabama

On Rehearing, October 23, 1919

Appeal from Circuit Court, Madison County; Robert C. Brickell Judge.

Bill for partition by Mack Winsett against A.G. Winsett, and others. From the decree respondents appeal. Reversed, and cause remanded.

David A. Grayson and Alice B. Baldridge, both of Huntsville, for appellants.

R.E Smith and Lanier & Pride, all of Huntsville, for appellee.

THOMAS J.

The bill is for partition by a sale of land that cannot be equitably divided among joint owners without a sale. As last amended, Mack Winsett was complainant, and all the other next of kin of Abraham G. Winsett, deceased, were made respondents. The said Abraham G., who died in 1882, was the father of respondent Ashley Glen Winsett, John A. Winsett Susan Clift, deceased, Mary A. Durden, Wm. J. Winsett, and James T. Winsett, deceased, and the grandfather of complainant Mack Winsett.

The said James T. Winsett died intestate in 1894, leaving as his sole heirs at law Tennessee Stevenson (wife of Wm. Stevenson), Abe Winsett, James L. Winsett, Elmo Winsett, Ella Durham, Maggie May, Sallie Carlisle, Ida Husch, and Mack Winsett. Tennessee Stevenson died intestate, leaving her husband and an infant, who died before the suit was brought. Susan Clift died intestate without debts, and without husband or children, after filing her answer in this suit. Respondent Charles E. Johnson was the owner of an unpaid mortgage given on the lands by Ashley G. Winsett. The complainant and respondents are alleged to be joint owners of the land involved, and it is agreed that, in the event the court holds that such joint ownership existed between the parties, said lands cannot be equitably divided without a sale. The lands were in range--west.

Mack Winsett, the youngest of said parties was born on May 29, 1892. After attaining his majority, the bill was filed by him on June 5, 1915. Respondent's counsel correctly observed that if complainant, Mack Winsett, could not recover against the respondent, none of the other parties to the bill could recover. Being a minor recently attaining majority, if he may recover his moiety of said real property, the rights of the other joint tenants are saved from the operation of the statute of limitations or of the rule of repose by the infancy of this minor complainant. Gourdine v. Theus, 1 Brev. (S.C.) 326.

If the respondent, though claiming to be in adverse possession of the land, had recognized the joint interest of one of the cotenants, did it operate to the benefit of other joint tenants? Of this we may observe that the legal effect of such recognition in other jurisdictions has been that where a tenant in common in adverse possession of land recognizes his cotenants' right in the same, a presumption arises that he ceases to be an adverse holder thereof. That is to say, "This recognition has the effect to put all the tenants in common in seisin and possession of their respective shares." Sparks v. Bodensick, 72 Kan. 5, 10, 82 P. 463; Venable v. Beauchamp, 3 Dana (Ky.) 321, 28 Am.Dec. 74; Alsobrook v. Eggleston, 69 Miss. 833, 13 So. 850; Illg v. Garcia, 92 Tex. 251, 47 S.W. 717; House v. Williams, 16 Tex.Civ.App. 122, 40 S.W. 414. He cannot recognize or purchase the interests of some of his cotenants and at the same time claim that he has ousted the other cotenants. Schoonover v. Tyner, 72 Kan. 475, 84 P. 124.

It may further be noted of the rules of cotenancy obtaining in this jurisdiction, applicable to the instant case, that, being in possession, a cotenant cannot change his tenancy without notice to the other cotenants (Alexander v. Wheeler, 69 Ala. 332, 340; Parks v. Barnett, 104 Ala. 438, 443, 16 So. 136; Ashford v. Ashford, 136 Ala. 631, 34 So. 10, 96 Am.St.Rep. 82; Walker v. Wyman, 157 Ala. 478, 47 So. 1011); for a cotenant out of possession may rest on the possession of a cotenant as being for all cotenants until an actual ouster is shown. The mere fact that a cotenant in possession has taken all the rents and profits does not show ouster of his companions. Coleman v. Coleman, 173 Ala. 282, 55 So. 827; Williams v. Avery, 38 Ala. 115, 118; Fielder v. Childs, 73 Ala. 567; Kidd v. Borum, 181 Ala. 144, 61 So. 100, Ann.Cas.1915C, 1226; McGuire v. Van Pelt, 55 Ala. 344. A redemption of the lands from mortgages and tax sales, or a purchase before the time for redemption has expired, and the discharge of other liens, will inure to the benefit of all cotenants therein. Bailey's Adm'r v. Campbell, 82 Ala. 342, 2 So. 646; Jackson v. King, 82 Ala. 432, 435, 3 So. 232: Howze v. Dew, 90 Ala. 178, 184, 7 So. 239, 24 Am.St.Rep. 783; Courtner v. Etheredge, 149 Ala. 78, 43 So. 368; Jones v. Matkin, 118 Ala. 341, 24 So. 242. However, if the cotenancy is destroyed, as by foreclosure and the expiration of the time for redemption, or by a sale for taxes and expiration of the time within which to redeem, or by a long-continued adverse and hostile possession of a tenant denying the title of his cotenant, and the knowledge of this hostile claim actually known to his cotenants the rights of such cotenants are defeated. Coleman v. Coleman, supra; Johnson v. Toulmin, 18 Ala. 50, 52 Am.Dec. 212; Smith v. Duvall, 78 So. 803; Chavers v. Mayo, 79 So. 594. The thereafter acquired title and possession of the land by a former cotenant will be in his individual capacity and not for the former joint owners.

Respondent Ashley Glen Winsett discussed the redemption of these lands with other of his cotenants; participated with one of them in freeing it of a trespasser who was felling the timber and claiming the right to cut the same therefrom; shared with his cotenant the timber cut by such third party, and moved on the land with the assistance of such other or another cotenant; conveyed a portion thereof to his sister; requested a cotenant to join with him in a mortgage thereon; and recognized the title of other cotenants by requesting a quitclaim deed in 1913. Inquiry of counsel as to the proposed contribution of the necessary money by cotenants for its repurchase or redemption was as follows: "Did any refuse to put up their part, or fail to put up their part?" Witness replied: "They all failed." This failure alone did not destroy the cotenancy. Its existence and continuance were established by the other acts adverted to, notwithstanding the witness' statement that he purchased the land from a Mr. Forbes, thereafter selling a portion to his sister, Mrs. Clift; that two of the many parties in interest knew of his purchase and of the sale, for he admits that he never notified them or any of the other cotenants that he was holding the land as owner and not "for their benefit"; "never told any of them that they had no interest" in the land.

That this respondent fails to fix this knowledge as to complainant's ancestor and as to many others of said parties in interest is shown by the following:

"Q. Before the death of your brother James T. Winsett, had you and he discussed the matter of trying to get possession of these lands or redeeming them; if so, state the conversation? A. We had a conversation about all going in and redeeming the land, before he was taken sick and died. Q. Did he know then that somebody else was in possession of the land? A. Yes; I suppose he did. *** Q. The Winsetts had talked over the matter of that land about that time? A. Yes. Q. With the possibility of getting it? A. Yes. Q. James T. Winsett paid the taxes on that land, didn't he? A. My mother gave him money two or three times to pay the taxes, but I don't know whether or not he paid them. Q. Was that the first two
or three years after he moved off the land? A. Yes. *** Q. When you and Jim (meaning James T. Winsett) and Clift and John were talking about the advisability of redeeming and trying to get possession of this land, had you been advised that the lands had been sold, or that you had lost the lands in any way? A. Yes. Q. Was anything said at that time about each of you putting up your part? A. Yes. Q. Did any refuse to put up their part, or fail to put up their part? A. They all failed."

Thus was the existence of the cotenancy recognized and shown. It is far short of a termination of cotenancy and ouster of cotenants. Moreover, this evidence does not show that said Ashley Glen Winsett informed his associates that he had cleared, or, as for that, would clear, the lands of well-founded claims, and gave his associates in title within a reasonable time an opportunity to avail themselves of the benefits of his redemption or purchase of such conflicting claim or interest in the common property. Savage v. Bradley, 149 Ala. 169, 43 So. 20, 123 Am.St.Rep. 30.

The testimony of the other parties shows that they were the next of kin of the said Abraham G. Winsett; that they or some of them knew and understood that the land in question was the property of said parties; that they or the complainant had no knowledge of declarations or acts on the part of said respondent hostile to their interest or in denial of their cotenancy in the land. When all the evidence is considered it fails to show an efficacious repudiation of their rights as cotenants, or that a claim of exclusive and hostile ownership made by respondent was brought home to them by actual knowledge, not by mere constructive notice in such wise as to terminate the tenancy. Palmer v. Sims, 176 Ala. 59 61, 57 So. 704; Kidd v. Borum, supra (181 Ala. 160, 61 So. 100, Ann.Cas.1915C, 1226); Oliver v. Williams, 163 Ala. 376, 383, 50 So. 937; Ashford v. Ashford, supra; Lay v. Fuller, 178 Ala. 375, 379, 59 So. 609; Johns v. Johns, 93 Ala. 239, 243, 9 So. 419. So, also, the evidence fails to show that Mrs. Clift's purchase and...

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