118 So. 651 | Ala. | 1928
The question presented as to said land on former appeal was that the widow, having by deed with general covenants of warranty sold and conveyed real estate of the deceased husband, thereafter could not institute proceedings under the statute (section 4224, Code of 1907; section 7948, Code of 1923) to have the same set aside as exempt to her. Strickland v. Hinson,
The amendment to the original bill, with its exhibits, was not a departure therefrom, but was supplemental thereto. It recites:
"Now come C. A. Strickland, R. S. Ward, and C. A. Pool, complainants in said cause, and amend the original bill heretofore filed in said cause as follows, viz." Middlebrooks v. Moore-Handley Hardware Co.,
The general rule is that such pleadings are one record, and not an attempt to proceed entirely upon the amended bill. There was no averment of intention to strike the original bill. Middlebrooks v. Moore-Handley Hdw. Co., supra; Brackin v. Newman,
The pleading and evidence supporting the same show the different interests of the parties, the nature and character of the land, as to woodland and cultivation, etc., and that it was of such nature and such small interests as afforded a basis for inference, ascertainment, and decree of sale necessary to its partition among the several joint owners of fractional interests and lienholders. Smith v. Duvall,
The fact that some of the joint owners have purchased of other owners their interests, or have sold their original interests, or have an interest in only a part of the lands, or that joint interests are by different rights, does not affect the right of partition or sale for division. Such purchasers are proper parties (O'Neal v. Cooper,
The averments of complainants of the source of their title and interest in the Hinson lands, through Sallie Ward, a deceased daughter of J. R. Hinson, and the answer of respondents containing admissions as to such averred source of title and respective interests therein, are sufficient for the purpose of partition. In the absence of evidence of debts due by a deceased ancestor, as between the respective parties to whom the lands descended under the statute, in this proceeding for partition, the foregoing averments and admissions are not sufficient to place upon complainants the necessity to show that there was no administration on the estate of a deceased ancestor, Sallie Ward, and no debts due by said decedent. Teal v. Pleasant Grove Local Union,
The right to assignment of dower was recently discussed in Whitehead v. Boutwell, supra; Yarbrough v. Yarbrough,
It is of statutory provision that the "widow is dowable" (Code, §§ 7449, 7450) in the lands and in amounts dependent upon the facts on which are based the prescriptions of the statute (sections 7427-7429, Code; Yarbrough v. Yarbrough,
In Todd v. Interstate Co.,
The death of Mr. Hinson was on January 8, 1914, and this bill was filed more than 10 years thereafter, on June 27, 1925. The bill as first amended was of date of December 29, 1925, and as last amended was of date of August 31, 1926; respondents' demurrer was filed on February 16, 1926, answer of date of June 16, 1926, and as amended was of date of September 1, 1926. It is manifest that respondents were barred as assignees of the right of dower, to have the benefit of the land in equity. We have indicated that all controverted titles, claims, liens, equities, or interest in the land under the statute will be disposed of in this proceeding; and the final decree will be so molded as to ascertain and protect the respective rights, equities, liens, or incumbrances of all parties to the lands in question before the sale. Sandlin v. Anders,
The respective phases of the evidence are discussed in the opinion of the learned circuit court (in equity), and the decree rendered is within the issues of fact presented by the pleading, and is supported by the evidence. It is hardly necessary to repeat the same.
It is without controversy that the legal title to the 88 acres of land in question was in Mr. J. R. Hinson at the time of his death on January 8, 1914. He did not occupy or use the same as his homestead. There were no minor children. These lands passed on his death to his children living and the children of his deceased children, subject to homestead and dower rights, when duly asserted. The evidence fails to disclose such due assertion of right by the widow, and that after 10 years had elapsed since the husband's death such rights were barred.
In November, 1914, the widow filed petition in the probate court to have title vested in her, and void order was made January 14, 1915, granting that petition, without compliance with the requirements of the statute. Sections 4224-4227, Code of 1907; Strickland v. Hinson,
It followed that the widow, having acquired no title or interest under the foregoing proceedings, could not convey to those respondents here, claiming under her deed. The burden here rests upon the claimants (Leddons), as against those holding by descent from decedent Hinson, to bring the formers' possession of the lands within one of the prescriptions of the statute for adverse possession (section 2830, Code of 1907), and for a period of 10 years immediately preceding the filing of this bill. These alternative statutory requirements for such possession are: (1) Under deed or color of title, duly recorded, for 10 years before commencement of the action; or (2) unless he or those through whom they claim have annually and duly listed the land for taxation for 10 years prior to suit, if the land is subject to taxation; or (3) unless he derives title by descent cast, or devise from a predecessor in title who was in possession of the land. Code of 1923, § 6069.
The possession of the widow was permissive in inception and referable to the legal title and subservient thereto. Yarbrough v. Yarbrough, supra. No adverse claim was filed under the statute. She had no color of title, as adverted to by one of the specifications of the statute. Clark was in possession in 1914, as tenant, and paid the rent to said widow, and held over; in February, 1915, the widow brought suit against Clark and had judgment for the possession, and by agreement carried into the judgment was permitted to remain in the possession (except the 10 *440 acres) as the tenant of the widow. He paid her the rent for 1915 for the land, less the exception, and as to this 10 acres Oscar Leddon paid her the rent. It results from this that the possession of Clark and that of Leddon, paying rent and attorning to the widow for that year, was the possession of Mrs. Hinson. Until about January, 1916, there was no change in the possession. At this date the Leddons (Oscar and Mrs. T. L.) entered or asserted their possession to said land under the respective deeds given them by the grantors, the widow Hinson (of date of April 7, 1916) and Mrs. Ellen Bush (of date of December 22, 1916).
The possession of Oscar Leddon to the 10 acres that he cultivated and paid rent to the widow in 1915, under the deed from the widow to Mrs. T. L. Leddon for possession to the lands, was not exclusive, since Clark was in possession of the larger tract as the tenant of said widow. The learned circuit judge observed:
That the possession of land, to ripen into title, "must be adverse and under a claim of right, actual, open, notorious, exclusive, hostile, and continuous for a period of 10 years next before the filing of the suit, and the adverse holder must bring himself within one or the other of the first three specifications of section 2830 of the Code of 1907. It is true that the deed from the widow to Mrs. T. L. Leddon to 38 acres of this land was of record more than 10 years before suit filed, but the testimony fails to show that she was in the adverse possession by herself or agent within the meaning of the law for such a period of time prior to the filing of the bill in this case. Nor does the testimony show that the widow, or either of the Leddons, listed the lands for taxes for the year 1915. In the opinion of the court, the Leddons have failed to bring their possession of any portion of the land within either of the first three specifications of the section mentioned, and therefore their claim of title by adverse possession must fall. Oscar Leddon, having acquired by deed from Ellen Bush her interest in 50 acres of the land, owns an undivided one-seventh interest in such 50 acres. Mrs. T. L. Leddon has no right, title, claim, or interest in any portion of said lands in controversy. The claim of the estate of L. E. Burford, deceased, under the mortgage executed to Burford by Oscar and T. L. Leddon, must stand or fall with the claim or right of the said Leddons, and under the finding of the court said mortgage is valid as against the interest of Oscar Leddon in the 50 acres of land described in deed to him from Ellen Bush. Mrs. C. A. Strickland, E. M. Hinson, J. T. Hinson, and Esther (Hinson) Smith each owns an undivided one-seventh interest in the 88 acres; the children of John Hinson, deceased, own jointly an undivided one-seventh interest in the 88 acres; R. S. Ward and Mrs. C. A. Poole each owns an undivided one-fourteenth interest in the 88 acres; Ellen Bush owns an undivided one-seventh interest in the SW 1/4 of SE 1/4, section 20, township 2, range 24, less 2 acres of said 40 sold to the Primitive Baptist Church; Oscar Leddon owns an undivided one-seventh interest in the SE 1/4 of SE 1/4, section 20, township 2, range 24, and 10 acres in the northeast corner of the NE 1/4 of NE 1/4 of section 29, township 2, range 24, all in Geneva county, Alabama." McCraw v. Lindsey,
We have carefully examined the evidence under the pleading, and find that the decree of the circuit court is without error, and is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.