Allison v. OwensAllison v. Owens
This is a statutory action in the nature of ejectment brought by H. Woodfin Owens against Will Allison to recover possession of a tract or parcel of land situated in Talladega County, Alabama, and described in the complaint as “all that part of the Northeast quarter of Northeast quarter of Seсtion 17, Township 19 South, Range 6 East, which lies South of Talladega Creek and West of the old Talladega-Ashland public road, also known as the Socopatoy Road, situated in Talladega County, Alabama.”
The case was tried before a jury, and resulted in a verdict and judgment for the plaintiff for the land suеd for. The defendant, Allison, has appealed to this court.
The description above set out was sufficient. Bradley et al. v. Ballentine,
The refusal of a motion to transfer a case from the law docket to the equity docket is not reviewable on appeal from a final judgment in the action. Barber v. Martin,
In 1856 Mrs. Maria W. Riddle received a register’s deed to a tract of land situated in *414 Talladega County, including the small parcel of land here invоlved. She subsequently married one Dye, who predeceased her. It appears that Maria W. (Riddle) Dye died -intestate prior to 1890. She was survived by three sons, Walter D. Riddle, Charles B. Riddle, and J. L. (Jack) Riddle. These sons attempted to divide all of the lands of their mother by an exchange of deeds, but the small pаrcel .here involved was not included in any of the conveyances. However, the undisputed evidence is to the effect that W. D. Riddle went into pоssession of this property as early as 1895 and remained in possession, operating a grist mill thereon, until his death in 1917 or 1918. We think the evidence satisfactorily shows that during all this time Walter D. Riddle treated the land in all respects as his own property, claimed to own it in his own right, without accounting to or recognizing any rights in his brothers. J. L. (Jack) Riddle owned the property east of the land with which this suit is concerned and on which W. D. Riddle operated the grist mill. There is evidence to the effect that he considered this property as belonging to W. D. Riddle. The Socopatoy Road was recognized as the dividing line between the property of these two brothers.
There is evidence for the plaintiff which tends to show that after the death of W. D. Riddle the property here in controversy was in the possession of his heirs and their tenants up until January, 1944, when all of the heirs of W. D. Riddle deeded this property, together with other lands, to thе appellee, H. Woodfin Owens. Owens’ right to recover in this suit is predicated on a claim that his predecessors in title had acquired title- to the рroperty by prescription.
As we understand the pleadings, defendant admitted possession of the property sued for, but denied plaintiff’s title and right to рossession. § 941, Title 7, Code 1940; Nelson v. Hardin,
The defendant based his claim of title on adverse possession beginning since the death of W. D. Riddle and on a deеd from one Burton, who conveyed to the defendant property which he had purchased from J. L. (Jack) Riddle.
The evidence tending to show adverse possession by Allison is in conflict. He was at one time a tenant of the heirs, of W. D. Riddle but it is not clear when this tenancy began or ended. After purchasing thе J. L. (Jack) Riddle property from Burton, which, as before stated, was just across the Socopatoy Road from the' land here involved, he claims tо have had' possession of this property for a long period of time. Evidence for the plaintiff is' to the contrary.
Now, as to defendant’s clаim of title through his deed from Burton. He claims an undivided one-third interest. In April, 1920, J. L. (Jack) Riddle and wife deeded to George R. Burton certain of the property whiсh had belonged to his mother and’ which had been conveyed to him by his brothers. As we understand the evidence,; it is not contended that the description of the property -conveyed in that deed included the property involved in this controversy. However, the deed contained the following provisiоn: “Also any and all other lands owned by grantors in Talladega County, Alabama, whether herein described or not, excepting, however, from said lands all minеrals of every kind” etc. In 1931 Olive R. Burton, individually and as administratrix of the estate of George R. Burton, deceased, and as trustee under the will of George R. Burton, сonveyed to defendant, Will Allison, the property which had been deeded to George R. Burton by J. L. (Jack) Riddle and wife. This deed from Olive R. Burton to the defendаnt contains the following provision: “It being intended to convey by this conveyance the lands covered by deed from J. L. Riddle and wife to George R. Burton.”
As wе understand defendant’s contention in this regard, it is this: Mrs. Maria W. (Riddle) Dye owned the property; it was inherited by her three sons; it was not covered in any deeds wherеby the lands of their mother were sought to be divided; that, therefore, J. L. (Jack) Riddle owned an undiyided one-third interest therein; that this interest was conveyed to Burton by virtue of the provision in the deed that J. L. (Jack) Riddle intended to convey all lands owned by him in Talladega County; and that, since Burton’s deed to defendant *415 сonveyed all of the property covered by the deed from J. L. (Jack) Riddle to Burton, defendant owns an undivided one-third interest in this property.
Evidence in behalf of- the plaintiff shows that the Burtons never were in possession of the property here involved nor did they consider that the deed from J. L. (Jaсk) Riddle covered this land.
The general charge with hypothesis as requested by defendant was refused and this action of the trial court is assigned as errоr. We think the affirmative charge was correctly refused the defendant. Walter D. Riddle had possession of the property for more than twenty yeаrs and although at the time he went into possession the title was in his brothers as well as himself, there is ample evidence to rebut any presumption of subsеrviency to the rights of his cotenants. Bailey v. Bond et al.,
As to defendant’s contention that he acquired title by adverse possession after the death of W. D. Riddle, we have heretofore pointed out that the evidence on that question wаs in conflict and was a matter for the jury’s determination.
Defendant’s Charges 3, 4 and 5 were correctly refused. They are to the effect that Walter D. Riddlе could not obtain title to the land here involved except by deed from his brothers. ,
An obj ection not made until after a responsive answer by the witnеss comes too late for the defendant to be entitled to review of the matter here. Hudson v. State,
Assignment of error No. 10 is without merit. The question made the basis of this assignment was not answered. Gilliland v. Dobbs,
Assignments of error 11 and 12 are not sufficiently dealt with in brief to invoke review by this court. Hodge v. Rambo,
The judgment of the circuit court is af-' firmed.
Affirmed.