Kennedy v. Rainey , 145 Ala. 572 ( 1905 )

DOWDELL, J.

This is a statutory action in the nature of ejectment, brought by the appellant against the appellees, to recover the' possession of certain lands described in the complaint. The facts in the case are practically without dispute, and it is not denied that at ono time the plaintiff held and owned the fee to the land in question. The important question in the case, and, we might say, the only question, is whether the plaintiff, Mary Julia Kennedy, prior to the partition proceedings which were had in 1866, conveyed her title to the land in question to Mrs. Lucy Ilatcher, under and through whom the defendant Mattie G. Rainey claimed the title.

It is conceded by counsel for appellees that the partition proceedings had in the probate court of Dallas county, which were nothing more in effect than a voluntary partition between the parties, did not and could not serve to create or divest title. ' The rule of law is too av;11 established to require' any citation or authority that partition operates upon the possession, and not upon the title, and selves to sever the unity of possession before oxisting. The theory of the defense as to the claim of title to the land in question in the defendant Mattie C. Rainey is ba^ed wholly and exclusively upon what is insisted by counsel for appellees to be a presumption of the law, indulged after a great lapse of time. In this case it is argued that, as 35 years have elapsed from the time (if the partition to the commencement of this suit, the presumption should obtain that Mrs. Lucy Hatcher, at some time between the dates of the death of her husband, John Hatcher, in I860, and the commencement of the partition proceedings in 386(5, by some transaction Avith the plaintiff, Mary Julia Kennedy, acquired title from the latter’in the lands that Avere partitioned. This argument is based mainly upon the folkwing authorities.— Normant v. Eureka Co., 98 Ala. 187, 12 South. 454, 39 Am. St. Rep. 45 ; Long v. Palmer, 81 Ala. 384, 1 South. 900 ; Wilson v. Holt, 83 Ala. 540, 3 South. 321, 3 Am. St. Rep. 768 ; McArthur v. Carrie’s Adm'r., 32 Ala. 75, 70 Am. Dec. 529. In none of the cases, hoAYtwer. are the facts the same as in the case at bar.

We think the undisputed eAudence in the case shows that Mrs. Lucy Hatcher Avas in possession of the entire tract of land which Avas partitioned from the time of the death of her husband, John Hatcher, until the time of the partition, under her quarantine right and Avith the right of having doAver allotted to her out of the lands. The doctrine asserted in the cases alum* cited, AAdiich are relied upon by the defendants, to the effect that the courts AAÚ11 decline to investigate or inquire- into the validity of such titles as those set up in the above-mentioned cases, but Avill make all reasonable presumptions necessary to uphold them, does not cut off, but leaves open to inquiry “the character of the defendant’s possession, cither in its original acquisition or in its continued use, as being on the one hand permissiA’e and in subordination, or on the other hostile and adverse.” In the present case the undisputed eA'idence1 sIioavs that the original acquisition or possession by Mrs. Lucy Hatcher Avas .in subordination to plaintiff’s fee, and its continued use by Mrs. Lucy Hatcher Avas Avholly consistent Avith the charter of the original acquisition or possession. On the eA'idence in the record there is no more ground or reason for presuming the passage of title in the land from Mary Julia Kennedy to Mrs. Lucy Hatcher prior to the inauguration of the partition proceedings than there, is for presuming.that the partition proceedings Avere had in pursuance to a. preAdous arrangement betAveen the. parties relative to Mrs. Hatcher’s doAver rights. While it is true as a matter of law that Mrs. Hatcher’s dower interest in the land was only one-third, yet it was entirely competent for the owner of the fee to enlarge this interest out of sheer generosity or for a consideration.

. The evidence fails to show that any hostile claim to the rights of Mary Julia Kennedy by Mrs. Hatcher up to the date of the latter’s death was ever brought to- the knowledge of Mary Julia, and the continued use of the land by Mrs. Hatcher was consistent with its original acquisition and in subordination to the fee of Mary Julia Kennedy. It fellows from what we have said, and it is our conclusion, that the court erred in its rulings and in the judgment rendered, and the same must be reversed and the cause remanded.

Reversed and remanded.

• Haralson, Anderson, and Denson, JJ., concur.