Spradling v. MaySpradling v. May
P. B. Mаy filed this bill against E. F. Spradling to establish a dividing line — in dispute — between their coterminous
The decree is to be accorded the usual presumption attending its correctness. The evidence was submitted ore tenus in open court and thе conclusion on the facts has the force and effect of a jury verdict. In the light of the presumption, we have concluded that to disturb the finding of the court would be without warrant. The case was one purely of fact to be resolved on a consideration of the testimony of the witnesses. So, with that court’s superior knowledge of thе locus in quo gained from being on the ground, so to speak, and hearing the witnesses testify, as we have said in many previous cases, he must have been better advantaged than we to arrive at a correct solution of the perplexing question.
The area ‘between the two disputed boundary lines comprises about 72.5 acres in the south portiоn of the north half of Fractional Section 16 and 4.5 acres off the north side of the south half of Fractional Section 16, Township 20 North, Range 1 West, Sumter County, Alabama. The common source of title originated in 1911 by a decree of the chancery court of Sumter County whereby Emma W. Scarborough and her children were invested with title to the “Ny2 of Fractional Section 16, Township 20, Range 1 West, and 4]/2 acres off the north side of the S% of Fractional Section 16” and whereby W. W. Winslett was invested with title to the “S% of Fractional Section 16, Township 20, Range 1 West, less 4% acres off the north side of the S% of said Section lying and being in Sumter County.” Pursuant to this decree deeds were exchanged by the Scarboroughs аnd Winslett conveying each to the other the respective lands set out in the decree. Thus was the boundary line between the two tracts of land established, resulting that title to the disputed area was thereby vested in the Scarboroughs.
Appellee May claims this as the boundary line and relies upon an unbroken chain of record title and possession originating from that common source. His title comes from a conveyance of the property in November, 1943, by one Nixon who received a deed from the Scarboroughs in June, 1943. The description in both deeds was in accordance with that in the decree of 1911 investing the Scarboroughs with title.
Appellant Spradling relies upon a deed from said Winslett dated December 20, 1924, and an unbroken record chain of title thenceforth, together with adverse possession. His chain of title through Winslett is as follows: Winslett to Willis in 1924; Willis to his daughter, Maggie W. Cathey, by will probated in 1929; Maggie W. Cathey to appellant Spradling February, 1942. The description of the lands in Fractional Section 16 in thе deed from Winslett to Willis and from Cathey to Spradling was a departure from the established line between the coterminous owners and conveyed the disputed area to which they had no record title, and in addition thereto several other distinct and separable tracts of land, comprising altogether 1043.43 acres. The 1043.43 acres is described in these two deeds as being in accordance with a map and survey made by M. E. Sumner, county surveyor, in 1924, attached to and made a part of the conveyances and recorded with them.
The incipiency of the trouble, of course, was when Winslett, though having no title to any part of the north half or to the 4.5 acres in the north part of the south half of Fractional Section 16, proceeded to deed to Willis not only the 4.5 acres in the south half, but also the acreage in the north half of Fractional Section 16. This conveyance was clearly abortive to convey a good paper title and in order to support his claim of title Spradling, as statеd, is relying on adverse possession.
It would be purposeless to detail the evidence, so we will refer to it but briefly. The evidence for the appellant to support his claim of adverse possession tended to show: After receiving his deed from Winslett in 1924, Willis placed a concrete post on the bank of the river at a point where the north line of the disputed area touched the river and also erected concrete posts
The trial court in a lengthy decree reciting the pertinent evidence to sustain it ruled that Spradling had not sustained his
burden of рroving title by adverse possession superior to the unbroken record title of May. The land in -controversy was proven to be wild swamp land along the Tombigbee River, which during the rainy season each year was overflowed and was practically inaccessible; the Scarborough family had exercised possessory acts over the 152.5 acres allotted to them by the 1911 decree, but the disputed area being so inaccessible it was not susceptible of much or notorious acts of possession and the real owners visited it at only infrequent intervals. But the Scarboroughs and their successors were claiming it as evidenced by various conveyances and otherwise. In 1927 one of the Scarborough children conveyed her interest in the property to Mrs. Emma W. Scarborough, using the same description as carried in the 1911 decree; in 1921 another of the children executed a power of attorney to his mother granting her the right to convey his interest in the timber; in 1930 Emma W. Scarborough et al. conveyed the timber tо E. L. Bruce & Company; in 1936 Mrs. Scarborough and the other title holders conveyed the timber to Bell-Hunnicutt Lumber Company. In 1941 her son conveyed his interest in the land to Mrs. Scarborough and in June of 1943 Mrs. Scarborough and a daughter, the then title owners of the property, conveyed the entire title to Nixon. In 1943 Nixon conveyed the timber on the land to Mico Log & Timber Company and in the same year mortgaged the land to McMillan & Company. In 1943 he conveyed the entire property to appellee May. During their ownership, Mrs. Scarborough and her children also leased the property to one Neal, who farmed it. He cut timber in the swamp for the purpose of keeping up the improvеments and the fences repaired. He rented portions for several years. He and his tenants hunted on the land. The purchasers of the timber cut and removed timber from some of the 152.5 acres, but it appears they did not cut in the big swamp because of apprehension of Cathey’s claim. There was testimony that the true dividing line was the Scarborough line established in 1911. Witness Greenleaf helped run this line. Other witnesses,- including- Mr. Reed, county surveyor, testified there were blazes and other marks designating this original line. Many witnesses testified that the disputed land was wild river swamp land and inaccessible except during the dry season and then not accessible by any
Where one claims title to land through an unbroken -chain of record title against anоther who relies upon adverse possession under color of title, the rule is well established. A very strict burden to establish his title rests upon the one claiming by adverse possession.
The law places such a high dignity upon a regular documentary title and requires such strict formalities to evidence it that a necessary concomitant is that in order to work a divesture of that title by adverse possession, all the essential elements must be proven by the stated measure of proof, and that proof must show that there has been an actual occupancy, clear, definite, positive, notorious, -continuous, adverse and exclusive for the requisite period under clаim of right of the definite tract involved.
Following are some of the authorities: Walthall v. Yohn,
It is also the established law that rare and widely separated acts, regardless
of how clearly they might have indicated a purpose to claim title, do not show a possession in wild land sufficient for the purpose of acquiring title by adverse possession. The possession must be continuous. Tensaw Lаnd & Timber Co. v. Rivers,
It must be borne in mind that the appellee and his predecessors in title were the holders of thе legal title and their possessory acts over a part of the land described in their deed from Winslett and in the decree of 1911 is deemed in law as constructive possession of all of the land therein described not actually in the adverse possession of another, and hence their possessory acts over any of the prоperty described in the chain of title was extended to “Big Swamp.” Turnipseed v. Moseley, supra.
It is argued that appellant is protected by the general rule that where, one entering under color of title in good faith upon a tract of land, his adverse occupancy of a part thereof would be extended to that not adversely occupied by another to the boundaries described in his color of title and that, therefore, the possessory acts exercised by appellant and his predecessors in title over some of the 1043.43 acres extended this possession to “Big Swamp,” to which they held no real paper title. Marietta Fertilizer Co. v. Blair,
Another proposition advanced by appellant is that when • the deed from Winslett to Willis was filed for record, which had attached to it the accompanying map of Sumner purporting to mark out the lines of the property, it was notice to the Scarboroughs and their title successors of the adverse claim to the disputed area. We do not regard this position as sustainable. The conveyance to appellant Spradling was by Cathey, the grantor who was not a successor in interest to Mrs. Scarborough, and the same is true as to the conveyances by Willis to Cathey and by Winslett to Willis, and not being within Mrs. Scarborough’s chain оf title, she was bound by no constructive notice by the recordation of these deeds. “The record of a deed from any other person than the grantor from whom title is claimed will not operate to give constructive notice to
a
subsequent grantee.” Tennessee Coal, Iron & R. Co. v. Gardner,
This principle is analogous to our recording statutes where it is held that the constructive noticе designed by them is to protect subsequent purchasers and lien-holders of real estate to the result here that Mrs. Scarborough would in no sense be bound by any constructive notice by the subsequent recordation of Winslett’s deed to Willis or Mrs. Cathey’s deed to appellant. Pittman v. Pittman,
We will also take notice of another propositiоn argued by appellant, which is likewise without merit. The contention is that the deeds executed by the Scarboroughs to Nixon and by Nixon to May were void as against the adverse claim of Spradling, who, it was claimed, was in possession of the disputed property. The rule has been otherwise since the Code of 1907, § 3839, now Code 1940, Title 7, § 938. The prevailing rule is that the deeds were not affected as to validity by the possession of the grantor or that of a party claiming under adverse possession. Rountree v. Jackson,
Concededly, this inaccessible river swamp land was not susceptible of many acts of possession of any kind and it does not appear that either of the parties or their predecessors in title exercised many acts of possession over it. The building of a fence by Cathey along the Sumner line and its re-establishment by the appellant did tend to show a claim of adverse possession, but just when that fence was constructed is the subject of conflicting testimony. There was evidence to sustаin the finding of the trial court that “it was not more than ten years prior to the time the complainant called the matter to the attention of the respondent.” Moreover, the mere fact that Cathey did build the fence with the thought of constructing it on the Sumner line did not of itself constitute adverse possession of someone else’s property. From aught appearing, he might not have intended to claim to that line if it should later have been discovered it was beyond the true boundary. Smith v. Cook,
It is also true that a property owner has a duty of exercising ordinary diligence in looking after his property so as to prevent others from acquiring title by adverse possession, but the nature of notice or knowledge which is to be imputed to a property owner is governed by the character and location of the land involved.
Under the guiding rule governing our review as first mentioned hereinabove, we are unable to pronounce error in the finding below.
Affirmed.