Summary
In Moore et al. v. Elliott, 217 Ala. 339, 116 So. 346, among other things, it was held: "Conveyance to stranger to title by one or more cotenants in possession of entire title in severalty and not merely grantor's interest, followed by entry into actual possession, open and exclusive, by grantee under claim of ownership in severalty, amounts to disseisin of other cotenants, which if continued for statutory period will ripen into title by adverse possession."
Summary of this case from Bishop v. JohnsonOpinion
6 Div. 694.
March 29, 1928.
Appeal from Circuit Court, Fayette County; Ernest Lacy, Judge.
W. L. Harris, of Fayette, for appellants.
A demurrer will lie for laches appearing on the face of the bill. Fowler v. Ala. I. S. Co., 164 Ala. 414, 51 So. 393; Woodlawn R. D. Co. v. Hawkins, 186 Ala. 234, 65 So. 183. A bill to quiet title must allege peaceable possession which must be averred and proved as a condition to statutory relief. An allegation that complainants are in open, notorious, and adverse possession is demurrable, as in such action the possession must be peaceable. Hicks v. Stone, 210 Ala. 685, 99 So. 115; Cooper v. Brown Son L. Co., 214 Ala. 400, 108 So. 20; White v. Cotner, 170 Ala. 324, 54 So. 114; Carr v. Moore, 203 Ala. 223, 82 So. 473. Possession of a tenant in common, without more, is not adverse to the claim of his cotenant. Oliver v. Williams, 163 Ala. 383, 50 So. 937. Possession by one cotenant that will ripen into title against another cotenant must be actual, open, notorious, exclusive, hostile, and continuous for ten years after actual knowledge of the exclusive ownership is brought home to the cotenant. Sibley v. McMahon, 210 Ala. 598, 98 So. 805; Ashford v. Ashford, 136 Ala. 631, 34 So. 10, 96 Am. St. Rep. 82; Kidd v. Borum, 181 Ala. 160, 61 So. 100; Winsett v. Winsett, 203 Ala. 376, 83 So. 117. When one enters upon land, he is presumed to enter under the title which his title purports to convey. Joyce v. Dyer, 189 Mass. 64, 75 N.E. 81, 109 Am. St. Rep. 603; Dew v. Garner, 207 Ala. 407, 92 So. 648, 27 A.L.R. 5.
S. T. Wright, of Fayette, for appellee.
Where one or more tenants in common execute a deed to a third person purporting to convey the entire estate, the possession of the granter taken under such deed is adverse to the remaining cotenants. 6 Mayfield's Dig. 878; Gulf Cedar Co. v. Crenshaw, 148 Ala. 343, 42 So. 564; Parker v. Proprietors, c., 3 Metc. (Mass.) 91, 37 Am. Dec. 121. It is sufficient to allege peaceable possession without the evidence to constitute. Vaughan v. Palmore, 176 Ala. 72, 57 So. 488. When complainant shows peaceable possession, he makes out a prima facie case. Geo. E. Wood L. Co. v. Williams, 157 Ala. 73, 47 So. 202. Continuity of possession will be presumed when it is shown that the owner was put in possession and that he was in possession nine years thereafter. 2 Mayfield's Dig. 79. When there is peaceable possession without dispute of right, it confers title under the rule of prescription, even as between tenants in common. Miller v. Vizzard Inv. Co., 195 Ala. 467, 70 So. 639; Bozeman v. Bozeman, 83 Ala. 416, 3 So. 784; Id., 82 Ala. 389, 2 So. 732. A mere claim of title or ownership is insufficient to rebut proof of peaceable possession, actual or constructive. Burkhalter v. Ala. M. L. Co., 206 Ala. 482, 90 So. 897. Equity has power to remove a cloud from title, independent of the statute. Hutson v. Campbell, 207 Ala. 637, 93 So. 539.
(after stating the facts as above). The statement of the case filed herewith is sufficient to indicate the questions presented, and to demonstrate that the appellants' contention that complainant and those under whom he claims entered as tenants in common with John W. and Della Moore is untenable.
The principle asserted by the appellants, that when one enters upon lands he is presumed to enter under the title which his deed purports on its face to convey, both as to the extent of the land and the nature of his interest, is unquestionably sound. Dew v. Garner, 207 Ala. 353, 92 So. 647, 27 A.L.R. 5; Joyce v. Dyer, 189 Mass. 64, 75 N.E. 81, 109 Am. St. Rep. 603.
It is equally as true that a conveyance to a stranger to the title by one or more cotenants in possession, purporting to pass the entire title in severalty, and not merely such cotenant's individual interest, followed by an entry into actual possession, open and exclusive by such stranger under claim of ownership in severalty, amounts to a disseisin of the other cotenants, which if continued for the statutory period will ripen into a good title by adverse possession. Dew v. Garner, supra; Riggs v. Fuller, 54 Ala. 141; 7 R. C. L. 854, § 48, and authorities cited under note 5.
The recital in the deed to Cannon that "the purpose of this conveyance is to convey 289 4/10 acres of land of the heirs of John C. Moore, deceased, situated in Fayette county, Alabama," clearly evinces a purpose to convey the entire title in severalty, without reservation or recognition of a continuing interest in the heirs of Moore.
Under the alleged facts, Sidney J. Cannon, in view of the principle stated, entered not as a tenant in common with John W. Moore and Della Moore, but under a conveyance purporting to convey the entire title in severalty, and he and those claiming under him have held adversely to the world for a period of thirty-three years. During that time the respondents and those under whom they claim have not claimed or enjoyed any benefits of their ownership, and for more than 20 years they might have asserted their claim upon a denial of their rights. "This court has repeatedly held that the lapse of twenty years, without recognition of adversary right, or admission of liability, operates an absolute rule of repose." Kidd et al. v. Borum, 181 Ala. 144, 61 So. 100, Ann. Cas. 1915C, 1226; Abercrombie v. Baldwin, 15 Ala. 363; Johnson v. Toulmin, 18 Ala. 50, 52 Am. Dec. 212.
There is no predicate in the alleged facts for the application of the doctrine of laches against the complainant, nor is there any merit in the contention that an open, hostile holding may not be a peaceful possession.
The decree of the circuit court is free from error.
Affirmed.
ANDERSON, C. J., and SOMERVILLE, and THOMAS, JJ., concur.