Hinds v. Kimbrell , 1998 Ala. Civ. App. LEXIS 408 ( 1998 )

CRAWLEY, Judge,

dissenting.

I dissent, on authority of Oehmig v. Johnson, 638 So.2d 846 (Ala.1994). In that case, our supreme court held that the rule of repose could not be used against one who had valid record title but who for 76 years had failed to assess the property and pay the ad valorem taxes. In Oehmig, the court stated:

“[T]he rule of repose cannot affirmatively create title, but is only a defense against stale claims. The rule of repose is ‘a defensive matter’ and ‘is unlike adverse possession, which affirmatively establishes title.’ The rule of repose has been described as the ‘running of the period against claims’ rather than a device to displace title. We hold that the rule of repose cannot be used against one with valid record title by one who clearly does not have title.”

638 So.2d at 850 (citations omitted).