author: EMBRY, Justice.

text:
    Lola HATFIELD et al. v. Robert SPEARS.
    78-302.
    Supreme Court of Alabama.
    Jan. 11, 1980.
    Rehearing Denied Feb. 22, 1980.

      Jackson P. Burwell, Huntsville, for appellant.
    Julian D. Butler and George W. Royer, Jr. of Butler & Potter, George K. Williams of Williams, Spurrier & Rice, Huntsville, for appellees.
   EMBRY, Justice.

Lola Hatfield and Clara Price commenced this action by filing a complaint styled “Complaint for Trespass and Conversions” against Robert Spears and Madison County. From summary judgment entered in favor of Spears and the county, Hatfield and Price bring this appeal. We affirm in part and reverse in part.

Issues

(1) Which statute of limitations governs the cause of action alleged against Spears labeled as trespass?

(2) Does failure to file an itemized claim with the county commission within twelve (12) months of the accrual of the claim bar a later action against a county commissioner, as an individual, for damages allegedly caused by the trespass of county employees which was directed and aided by that commissioner for his personal gain?

(3) Is conversion an appropriate cause of action under the facts of this case?

(4) Did plaintiffs produce sufficient evidence to create a genuine issue as to any material fact?

Facts

Plaintiffs’ complaint in this action contains four counts. It names both Robert Spears and Madison County as defendants. The substance of its allegations is: (Count 1) Spears and Madison County, through its agent Spears, intentionally caused employees of Madison County to trespass upon the plaintiffs’ lands and cause various types of damage to their real property; (Count 2) Spears and Madison County, through its agent Spears, intentionally caused employees of Madison County to come upon the plaintiffs’ lands and to convert real and personal property belonging to them; (Count 3) Spears and Madison County, through its agent Spears, intentionally caused employees of Madison County to wrongfully remove dirt from lands belonging to plaintiffs and to use the dirt to fill land belonging to Spears, thus maliciously and wrongfully converting the dirt; and (Count 4) Spears devised a scheme to divert water drainage across plaintiffs’ lands from his land and such scheme was a misuse of Spears’ power as a county commissioner. The latter count was dismissed by plaintiffs.

Both Spears and Madison County moved for summary judgment on various grounds. In support of their motion defendants filed the affidavit of C. E. Quick, clerk-auditor of the Madison County Commission, which stated an itemized claim for damages had not been filed by plaintiffs.

In response to the motion for summary judgment, plaintiffs submitted an answer rebutting the allegations by Spears and Madison County. Plaintiffs also submitted an affidavit by their former attorney stating he had discussed the case with Spears and a letter had been written to the Madison County Commission concerning the case. After a hearing the trial court granted summary judgment as to all claims against Spears and as to all but one of those against Madison County; plaintiffs later dismissed that remaining claim and this appeal ensued.

Decision

Plaintiffs do not urge error in the entry of summary judgment in behalf of Madison County; however, they do argue that summary judgment was improper as to Spears. This being the case, we need not address the propriety of summary judgment in favor of Madison County because the effect of plaintiffs’ actions regarding that party is to make final the judgment in its behalf.

Plaintiffs contend the trial court applied the wrong statute of limitations in granting summary judgment in favor .of Spears. The trial court’s judgment, dismissing the action against Spears, cited City of Fairhope v. Raddcliffe, 48 Ala.App. 224, 263 So.2d 682 (1972). In Raddcliffe, the Court of Civil Appeals held that an action against the City of Fairhope was barred by the one year statute of limitations found in § 6-2— 39, Code 1975 (then Tit. 7, § 26, Code 1940). The appellate court reached this conclusion by determining that the action filed against the City of Fairhope was based on a respon-deat superior theory. Actions based on re-spondeat superior principles are trespass on the case, not trespass, therefore governed by the one year statute of limitations and not the six year statute. The appeals court further stated that alleging wantonness or its equivalent did not necessarily charge trespass; because, unless there is direct force, there can be no trespass. While Raddcliffe sets forth correct legal principles, the instant case is distinguishable.

In this case plaintiffs allege that Spears “intentionally” caused employees of Madison County to come on their land and do direct physical damage to their property. It has long been the law in this state that a person may commit a trespass, although he is not present at the time the trespass is committed and does not take a personal hand in the trespass, by directing, aiding, participating in, or ratifying the trespass committed by that person’s active agent or joint participant. C. O. Osborn Contracting Co. v. Alabama Gas Corp., 273 Ala. 6, 135 So.2d 166 (1961); Trognitz v. Fry, 215 Ala. 609, 112 So. 156 (1927). Thus the distinction between this case and Raddcliffe is that the latter is one of trespass on the case while this is one of trespass.

In Raddcliffe, the plaintiffs sought to hold the city liable merely because of a master-servant relationship; thus the action charged was trespass on the case and the one year statute of limitations applied. In this case Spears is charged with actually directing or aiding in the commission of a trespass; therefore, the six year statute of limitations applies. See C. O. Osborn Contracting Co. v. Alabama Gas Corp., supra, and Trognitz v. Fry, supra. The following language in plaintiffs’ complaint clearly shows Spears was being charged in trespass and not in trespass on the case:

“* * * the Defendant, Robert Spears and the Defendant Madison County, through its agent Robert Spears, * * * did intentionally cause employees of Madison County to trespass upon the lands of both Plaintiffs * * *(Emphasis added.)

See C. O. Osborn Contracting Co. v. Alabama Gas Corp., supra; City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389 (1903). This is true because the language charges Spears with affirmative participation in the trespass on plaintiffs’ lands. See City Delivery Co. v. Henry, supra.

The next major issue is whether the plaintiffs’ failure to file an itemized claim for damage, as provided by §§ 6-5-60, 11-12-5 and 11-12-8, Code 1975, within 12 months of the trespass bars the action against Spears. We hold those code sections, under the facts of this case, do not apply to actions against a county commissioner who acted in his own individual capacity for personal gain.

Defendant contends that this court’s holding in Williams v. McMillan, 352 So.2d 1347 (Ala.1977), requires a claim to be presented to the county within 12 months of its accrual even though the claim is for liability of a commissioner of the county who acted in his individual capacity. We cannot agree. In Williams, we did not address the question of whether a claim had to be filed with the county if the claim was against the county commissioner for his individual action or liability when his actions were taken for his own personal gain or profit.

Sections 11-12-5, 11-12-8 and 6-5-20, Code 1975, refer only to claims and actions against the county. They do not require the filing of a claim with the county when the action or claim is against the individual commissioner who has acted solely in his individual capacity. If a county commissioner is joined in an action against the county, as in this case, the failure to file an itemized claim as required by the statutes will bar the action against the county, but will not necessarily bar the action against the county commissioner if he has acted for personal gain and is sought to be made independently liable. To require claims to be filed with the county commission as a condition precedent to maintaining a lawsuit against the individual county commissioner who has acted in his individual capacity woüld require us, in effect, to amend the statutes which require the filing of claims as a condition to suit against the county. Clearly, this court may not make such statutory amendments. Town of Loxley v. Rosinton Water, Sewer and Fire Protection Authority, Inc., 376 So.2d 705 (Ala.1979).

The other major issue concerns counts two and three of plaintiffs’ complaint. They allege that Spears converted to his own use dirt severed from their property. We conclude that summary judgment was properly entered in behalf of Spears as to these two counts.

Plaintiffs urge that conversion was a permissible cause of action because: (1) dirt was severed from their property; (2) the dirt thus became personal property; and (3) Spears converted such personal property to his own use. We, however, agree with defendant’s argument that an action for conversion could not be maintained because the dirt was permanently affixed to realty and, thus, became incorporated into that realty. Alabama law is clear that trover will only lie for conversion of chattels and will not lie for the conversion of personal property which is, after the alleged conversion, incorporated into real property. Bynum v. Gay, 161 Ala. 140, 49 So. 757 (1909); Thweat v. Stamps, 67 Ala. 96 (1880).

Finally, defendant contends that summary judgment was proper because plaintiffs did not offer sufficient evidence to create a genuine issue as to any material fact. We find no merit in this contention. An affidavit was filed stating that an itemized claim had not been filed with the county. A counter-affidavit was filed explaining the failure to file a claim with the county. By response to the motion for summary judgment, the six year statute of limitations found in § 6-2-34, Code 1975, was pleaded as applicable to this action, which under count one of the complaint sounded in trespass.

For the assigned reasons, the judgment in favor of Robert Spears as to count one of plaintiffs’ complaint charging Spears with trespass is reversed. The summary judgment in favor of Robert Spears as to the counts of the complaint for conversion and the summary judgment in favor of Madison County as to all counts is affirmed.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Ex parte RELIANCE INSURANCE COMPANY, Tony Craft, and The Nolen Agency, Petitioners. In re SUBSTATION PRODUCTS CORPORATION v. STATE FARM FIRE & CASUALTY COMPANY, Terry Henley, Reliance Insurance Company, James H. Dennis, Sr., Tony Craft, The Nolen Agency, et al.
    No. 78-675.
    Supreme Court of Alabama.
    Jan. 11, 1980.
    Rehearing Denied Feb. 22, 1980.

      Tommy Yearout and Lyman H. Harris, of Lorant, Harris & Yearout, Jack Porterfield, Jr., of Dunn, Porterfield, Scholl & Clark, Birmingham, for petitioner.
    William C. Barber, Birmingham, for respondent William C. Barber.
    John Martin Galese and Richard A. Groe-nendyke, Jr., of Galese & Chambers, Birmingham, for respondents William C. Barber, James H. Dennis, Sr., and Substation Products Corp. of Birmingham.
    Thomas A. Woodall, of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for respondent State Farm Fire & Cas. Co.
    William C. Wood, Jr., of Norman, Fitzpatrick & Wood, L. Graves Stiff, III, of Starnes & Starnes, Birmingham, for respondent Terry Henley.
   ALMON, Justice.

This is an original petition for writ of mandamus filed by Reliance Insurance Company, Tony Craft and The Nolen Agency.

The respondents are Judge William C. Barber, of the Jefferson County Circuit Court, and the other parties to the action pending in the Circuit Court.

The petition seeks to set aside an order issued by Judge Barber on July 3, 1979, which denied petitioners a right to a jury trial. The order also refused to add Dennis Mining Supply and Equipment, Inc., as a necessary party and limited the scope of discovery as to James H. Dennis, Sr.

For a better understanding of the facts we quote from pertinent portions of the petition.

1.Plaintiff, Substation Products Corporation, filed its original complaint on January 18, 1979, against State Farm Fire and Casualty Company, Reliance Insurance Company, and James H. Dennis alleging, among other things, that James H. Dennis had leased a building from the plaintiff, and that on or about July 24, 1978, Dennis, doing business as Dennis Mining Supply and Equipment, Inc., obtained fire insurance from State Farm Fire and Casualty Company on the building to insure plaintiff’s interest in the building. The original complaint averred that thereafter Dennis obtained additional or other insurance insuring the building with Reliance Insurance Company.

2. On February 9, 1979, plaintiff, filed an Amendment to Complaint, adding as defendants Tony Craft and The Nolen Agency. In the Amendment, plaintiff charged Reliance Insurance Company, Tony Craft and The Nolen Agency with, among other things, negligence in failing to adequately underwrite and insure the building. Moreover, plaintiff sought in its Amendment to have the Reliance insurance policy reformed to require Reliance to pay the plaintiff under the policy of insurance for destruction of the building by fire, for which plaintiff claimed $150,000, interest, costs and a reasonable attorney’s fee. The named insured under the Reliance insurance policy was Dennis Mining Supply and Equipment, Inc., which is not a party to this action.

3. The building, which is the subject of this action, was damaged and destroyed by fire on January 2, 1979. The Fire Prevention Bureau of the Fire Marshal’s office of the City of Birmingham Fire Department has determined that the fire originated by acts of arson. The arson is still under investigation by the Fire Prevention Bureau and no determination has been made at this point as to who is responsible for the commission of this crime of arson. One of the suspects is defendant, James H. Dennis, the principal of Dennis Mining Supply and Equipment, Inc. Contained in the building were vehicles, and various items of mechanical and office equipment and other office contents, a substantial part of which, were destroyed by the fire. A great deal of this personal property was also insured by policies of insurance issued by Reliance Insurance Company to Dennis Mining Supply and Equipment, Inc., during the same time period based on misrepresentations made by its principal James H. Dennis.

4. On February 1, 1979, Reliance Insurance Company filed a Motion to Dismiss, which was overruled by Judge William C. Barber on February 20,1979. Investigation and discovery was begun by the defendants. Depositions were attempted to be scheduled by the various parties, but were postponed because of conflicts in the schedules of the attorneys. On May 4, 1979, before any depositions had been taken in the case, the attorney for the plaintiff, John Martin Ga-lese, obtained from Judge Barber a trial date of July 17, 1979, and wrote the other attorneys indicating that he had obtained the date. We, on behalf of Reliance Insurance Company, immediately informed Mr. Galese and Judge Barber that discovery could not be completed by that date.

5. On March 27, 1979, Judge Barber overruled a motion to dismiss filed on March 13, 1979, by defendants, The Nolen Agency and Tony Craft, and on June 5, 1979, defendants Tony Craft and The Nolen Agency filed its answer and jury demand, demanding on behalf of Tony Craft and The Nolen Agency a struck jury for the trial of this cause.

6. On May 11, 1979, Reliance Insurance Company filed its Answer to the Complaint. In its answer, Reliance Insurance Company raised as its fifth defense, that it' had been induced to write the policy of insurance in question by fraudulent misstatements of fact material to the acceptance of the risk and hazard to be assumed by the coverage applied for. Reliance also stated that the policy was issued in reliance upon such misstatements and as a result of such misstatements, and that the policy would not have been issued if the true facts had been known at the time of the application, had the misrepresentations not been made. Further, the defense was raised that the policy was void.

7. On June 4, 1979, Reliance Insurance Company filed and Judge William C. Barber heard Reliance’s Motion for Permission to File Cross-Claim, Adding Additional Party. Reliance sought through its motion to, among other things, add Dennis Mining Supply and Equipment, Inc., as a party to the action. Moreover, on June 4, 1979, Reliance Insurance Company filed a cross-bill for declaratory judgment. Reliance Insurance Company filed its cross-bill against James H. Dennis, Sr., Substation Products and Dennis Mining Supply and Equipment, Inc. Reliance averred in its cross-bill, among other things, that it was induced by Dennis to issue policies of insurance to Dennis Mining Supply and Equipment, Inc., to insure said company against loss by fire. Reliance stated that objects of insurance were certain buildings, equipment, vehicles and inventory, which Dennis represented that he and his company owned, free and clear of any mortgage or encumbrance, when in fact he and his company did not own many of the items insured. Reliance further stated that Dennis misrepresented his record of prior claims and that as a part of a scheme to defraud Reliance Dennis failed to inform Reliance that there was other insurance with other companies on some of the items that he was purchasing insurance on from Reliance. Reliance further claimed in its cross-bill that Dennis fraudulently misrepresented facts, omitted facts and concealed facts which were material to the acceptance of the risk by Reliance and were material to the hazard Reliance was induced to assume, and that the policies should be declared void.

8. On the same day, June 4, 1979 Judge William C. Barber entered an order denying and overruling Reliance Insurance Company’s Motion for Permission to File Cross-Claim, Adding Additional Party.

9. On June 12, 1979, Reliance Insurance Company filed its demand for a jury trial.

10. One of the items insured by Dennis Mining Supply and Equipment under the Reliance Insurance Company policy was a Chicago — Pneumatic CP-650 drill, serial number 70819. The drill was added to the policy and insured by Dennis Mining Supply and Equipment, Inc., with Reliance on December 28, 1978, just five days before it was destroyed in the fire of January 2, 1979. Mr. Dennis, on behalf of Dennis Mining Supply and Equipment, Inc., filed proofs of loss with Reliance Insurance Company, claiming that he owned the drill. Through its own independent investigation, Reliance discovered that Bill Allen, of Bessemer Oil Company, insured the same drill for $225,-000 on December 28, 1978, with the Fireman’s Fund Insurance Company, claiming that he owned the drill rig. ITEL Capital Corporation has sued Dennis Mining Supply and Equipment, Inc., James Dennis, Bessemer Oil Company and Michael Terbecki in the United States District Court, claiming that on November 7, 1978, Dennis represented to ITEL that he owned the drill and that on November 7, 1978, Dennis sold the drill to ITEL for $225,000. ITEL claims-that Dennis represented the drill to have been a new one and represented that it would be located at Bessemer Oil Company, when in fact it was not new and was not located at Bessemer Oil Company. ITEL contends that Dennis defrauded it in a number of schemes. * * * After filing a proof of loss in which he claimed that he owned the drill, Dennis gave a sworn statement in which he admitted that he owned no interest in the drill rig, but stated that it was owned by John Thornton and Irmo Jean Thornton. Bessemer Oil Company is making a claim against Fireman’s Fund for the loss of the same drill rig but neither Bessemer Oil or Fireman’s Fund are parties to this lawsuit.

11.Moreover, Dennis, on behalf of Dennis Mining Supply and Equipment, Inc., filed a proof of loss with Reliance Insurance. Company for one 1978 Allis-Chalmers forklift valued at $18,650.00. Dennis claims on the proof of loss that he purchased the forklift from DeShazo Equipment Company on September 14, 1978, for $18,650.00, and he claims a total loss on the forklift in that amount. This forklift is one of the items insured under the Reliance Insurance poli-, cy. In our investigation we have since learned that DeShazo Equipment Company claims that it in fact owned the forklift, and that it had an insurance policy on the forklift with Commercial Union Insurance Company. Sometime after January 2,1979, DeShazo Equipment Company reported to Commercial Union Insurance Company that the forklift had been stolen.

12. On or about July 6, 1979, James H. Dennis was indicted by a Federal Grand Jury. Dennis is named in nine of the ten counts in the indictment. Count six of the indictment alleges that Dennis received $225,000.00 from ITEL Capital Corporation for a Chicago-Pneumatic model 650 drill, which is the same drill referred to herein, when Dennis never owned the drill. All ten counts of the indictment involved acts of fraud. One of the other persons indicted, along with Dennis, is James Anthony Shad-dix, a former employee of Dennis and a material witness in this action. That case is set to be tried in federal court in September.

13. On June 4, 1979, the deposition of James Dennis was taken and counsel for Reliance Insurance Company attempted to question Dennis about the drill rig that was in the building at the time of the fire which he had insured with Reliance Insurance Company and which had been insured by Bessemer Oil with Fireman’s Fund Insurance Company on the same day the Reliance policy was purchased by Dennis. Efforts were made to question Dennis about the other equipment that was inside the building that was also insured by Reliance Insurance Company, and which may have been insured by other persons with other insurance companies. Dennis refused to answer. The matter “was presented to Judge Barber and Reliance’s position was explained to Judge Barber. Judge Barber restricted the scope of discovery to questions which pertained to only the building itself. Judge Barber would not order Mr. Dennis to answer any questions relating to the drill or the forklift or any equipment that was inside the building which was damaged in the fire and which was insured under policies issued by Reliance Insurance Company during the same time that the policy on the building was taken out.

14. In an effort to make its position fully understood, Reliance Insurance Company filed a written motion on June 18, 1979, asking that Dennis Mining Supply and Equipment, Inc., be added as an indispensable party, since it was the named insured under the policies of insurance, and on the basis that it was an indispensable party if the policy was to be declared void, and asking the Court to remove its restraint on discovery and to broaden the scope of discovery so as to include all matters which relate to the issue of fraud committed by Dennis Mining Supply and Equipment, Inc., its employees, James H. Dennis and his cohorts against Reliance Insurance Company. Reliance set out in its motion some of the facts which it hoped to be able to prove if the scope of discovery was broadened.

15. On June 25,1979, Reliance Insurance Company filed its Motion to Continue the trial of July 17 on the basis that jury demands had been made in the action and that there is no jury during the week of July 17, 1979, and because of the restrictions which had been placed on discovery earlier, and because the arson investigation has not been completed.

16. On June 29, 1979, Judge Barber heard arguments from counsel in support of the Motion to Continue and the Motion to Add Dennis Mining Supply and Equipment, Inc., as an indispensable party and to broaden the scope of discovery. * * *

17. On July 3,1979, Judge Barber issued a pre-trial order wherein he concluded that the various jury demands made by the defendants were not timely filed. His restraint on the scope of discovery was left intact. He further overruled and denied all other pending motions which would include Reliance’s Motion to Continue and Motion to Add and Broaden. * * *

The issues presented for our consideration are:

(1) Should the named insured be added as a necessary party?

(2) Should Reliance be precluded from discovering other alleged fraudulent acts of James H. Dennis, Sr., which pertain to the obtaining of insurance from Reliance?

(3)Are the petitioners entitled to a jury trial?

Petitioners’ first contention is that the named insured should be joined as a party under Rule 19, ARCP. Rule 19 states, in part, that

(a) Persons to be joined if feasible. A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.

The respondents assert that since evidence was presented that Dennis Mining Supply claimed no interest in the proceeds of the Reliance insurance policy and that Dennis, who is president, chairman of the board and sole stockholder of Dennis Mining Supply was already a party it is unnecessary to add Dennis Mining Supply.

We disagree. To begin with, the trial court does not have jurisdiction over Dennis Mining Supply and if not joined then Reliance, Tony Craft, Terry Henley and The Nolen Agency could be subject to the risk of incurring inconsistent obligations. Secondly, in a suit involving reformation or recision of a contract all the parties to the contract must be before the court. 3A Moore’s Federal Practice ¶ 19.10, at 224-26 (2d ed. 1979). Notwithstanding Dennis’ statement that his company claims no interest in the proceeds, the company must be before the court so that the policy under which it is a named beneficiary may be reformed. It is therefore our opinion that Dennis Mining Supply must be added as a party to this action.

Petitioners also seek to discover matters concerning various items of personal property which were destroyed by fire along with the building. Discovery is being sought as part of an attempt to prove a fraudulent scheme on the part of Dennis. Respondents contend that the trial judge was made aware of the fact that various agencies of the United States government were conducting investigations into the personal property destroyed in the fire, and that James Dennis was a suspect in those investigations. Respondents further assert that the court was informed that if these questions were deemed to be within the permitted scope of discovery, Dennis would interpose his privilege against self-incrimination under the Fifth Amendment of the United States Constitution.

Rule 26(b), ARCP, provides that the scope of discovery may be limited by order of the court. In Assured Investors Life Ins. Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978), the court stated:

* * * The Rule does not allow an arbitrary limit on discovery; instead, it vests the trial court with judicial discretion in the discovery process. The question on review, then, becomes one of whether, under all the circumstances, the court has abused this discretion. An appellate court may not decide whether it would, in the first instance, have permitted the prayed for discovery. Furthermore, it is unusual to find abuse of discretion in these matters.

362 So.2d at 231-32. (Citations omitted.)

We find that Judge Barber has not abused his discretion in limiting the scope of discovery.

Lastly, petitioners contend that their jury trial demands should not have been overruled. Judge Barber’s reason for denying a trial by jury was that these demands were not timely filed. We find that the jury demands of Tony Craft and The Nolen Agency were timely filed but the jury demand made by Reliance Insurance Company was not.

Rule 38(b), ARCP, requires that a demand for a jury trial, on any issue triable by a jury, must be made within thirty days after the service of the last pleading directed to such issue. Thus

[if] the only pleadings in the case are the complaint and the answer, the demand for jury trial must be served not later than [thirty] days after service of the answer.
******
[However, if there is a] counterclaim and reply [which] raise new issues, and the answer is the last pleading directed to the issues raised by it and the complaint, a demand served more than [thirty] days after the answer but not later than [thirty] days after the reply is only effective for the issues raised in the counterclaim and reply and it does not require jury trial of the issues framed by the complaint and answer.

9 Wright & Miller, Federal Practice and Procedure, § 2320, at 92-93 (1971). See also, 5 Moore’s Federal Practice, ¶ 38.41, at 328.4 (2d ed. 1979); Hamon Leasing, Inc. v. Continental Cars, Inc., 358 So.2d 442 (Ala.1978).

On June 5, The Nolen Agency and Tony Craft filed an answer to those issues raised in Substation Products’ complaint. Their answer included a demand for a jury trial. As the thirty day period for making their jury demand commenced from the date of service of their answer the jury demand was timely filed.

Reliance filed its answer .to Substation Products’ complaint on May 11. A jury demand was not made at that time. On June 4 Reliance filed a cross-bill in which it requested that Dennis Mining Supply and Equipment, Inc., be added as an indispensable party. No other new issues were raised in- this cross-bill. On June 12, Reliance made a demand for a jury trial on all issues triable by a jury.

For Reliance’s June 12 jury demand to be timely it must have been made within thirty days following Reliance’s answer to Substation Products’ complaint. It would also have been timely if the cross-bill had contained new issues not raised in the Substation Complaint. Since neither of the above has occurred Reliance’s jury demand must be found not to have been timely filed.

The petition for writ of mandamus is hereby granted to add the named insured as an indispensable party and to entitle Tony Craft and The Nolen Agency to a jury trial. The petition for writ of mandamus is denied as to petitioners’ request for a broader scope of discovery and Reliance’s request for a jury trial. Petitioners’ request for the filing of a cross-bill adding Dennis Mining Supply and Equipment, Inc., as an indispensable party is granted.

WRIT GRANTED IN PART AND DENIED IN PART.

TORBERT, C. J., and FAULKNER, EM-BRY and BEATTY, JJ., concur.


author: BEATTY, Justice. MADDOX, Justice

text:
    Melinda EARLY v. William E. NOBLIN, III.
    78-701.
    Supreme Court of Alabama.
    Jan. 11, 1980.
    Rehearing Denied Feb. 8, 1980.
    Calvin M. Whitesell, Montgomery, for appellant.
    Thomas H. Keene and Charles Stakely, Jr., of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
   BEATTY, Justice.

Plaintiff appeals from a summary judgment granted in favor of defendant in a medical malpractice action. We affirm.

On November 17, 1976, plaintiff Melinda Early severely cut her right wrist while attempting to raise a window. After Miss Early was taken to the hospital, she was examined by defendant, Dr. William E. Noblin, III, a plastic surgeon. Dr. Noblin concluded that two of the tendons in Miss Early’s wrist had been severed and that the ulnar nerve had been partially cut. Defendant cleaned the wound and repaired the tendons, but did not attempt to treat the damáged nerve. Dr. Noblin saw Miss Early in his office the next morning and regularly thereafter until June 30, 1977. Although Miss Early was under the impression that defendant was planning to operate again on her wrist soon after the first operation, it appears that Dr. Noblin decided that the risk of further surgery outweighed the potential benefits to be gained thereby. Because plaintiff continued to experience some loss of function in her hand, she went to another surgeon, who operatéd on her wrist with apparently good results; Miss Early now has almost complete restoration of function in her hand.

In her complaint charging Dr. Noblin with medical malpractice, plaintiff alleged that “Defendant failed to give her proper care and negligently treated and cared for the Plaintiff while she was his patient and she was caused to suffer permanent injury to her hand and person . . . Dr. Noblin moved the trial court for summary judgment on the basis of the parties’ depositions and on plaintiff’s answers to defendant’s interrogatories. The motion was also accompanied by the deposition of Dr. James W. Green, who had been consulted by plaintiff approximately one month after her injury. In response, plaintiff submitted the same depositions and filed a photograph of plaintiff’s hand. Plaintiff also attached a physician’s affidavit stating that Bunnell’s Surgery of the Hand was a standard and accepted medical reference book on surgery of the hand. It does not appear that the book itself was before the trial court. After considering all matters on file with the Court and the oral arguments of counsel, the Montgomery Circuit Court granted defendant’s motion for summary judgment. The trial court’s action was correct under prevailing Alabama law.

In this case, there is no evidence in the record that Dr. Noblin failed to adhere to the standard of care mandated by Alabama law; indeed, the expert testimony of Dr. Green affirmatively shows that in Miss Early’s case, defendant did exercise the same degree of care, skill and diligence as hand surgeons in the medical community ordinarily exercise in a like case. Because in his motion for summary judgment defendant effectively negated the essential allegations of plaintiff’s complaint, it was incumbent upon plaintiff in her response to “set forth specific facts showing that there [was] a genuine issue for trial.” See ARCP 56(c). This was not done, and so summary judgment in defendant’s favor was properly granted.

The trial court’s judgment must be affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER, ALMON, SHORES and EM-BRY, JJ., concur.

MADDOX and JONES, JJ., dissent.

MADDOX, Justice

(dissenting):

This is a negligence case, and the law is clear that issues of negligence are ordinarily not susceptible to summary adjudication. 6 Moore’s Federal Practice ¶56.17[42], While I recognize that Dr. Green testified, by deposition, that Dr. Noblin, the defendant, had followed the appropriate community standard of care applicable to his profession, I do not accept this testimony as being uncontradicted.

Plaintiff filed, in opposition to defendant’s motion for a summary judgment, an affidavit of Dr. Haynes C. Byrne, a practicing physician licensed to practice in the State of Alabama in Montgomery County, in which Dr. Byrne stated “that Bunnell’s Surgery of the Hand is a standard and accepted medical reference book on surgery of the hand and is accepted by physicians in practice in the State of Alabama and throughout the United States.” Admittedly, the portions of the treatise which plaintiff intended to use are not in the record; therefore, we do not know which portions, if any, plaintiff brought to the attention of the trial court. I have examined photocopies of the pages from this treatise and I am convinced that at least a scintilla of evidence is presented on the issue of whether or not the treating doctor followed accepted practices and procedures. Consequently, I believe that the trial court’s grant of summary judgment was inappropriate.

The movant contends that the affidavit by Dr. Haynes C. Byrne is insufficient because it does not refer to any specific pages of the treatise which ’"ould apply to the subject case. Admittedly, the affidavit filed in opposition to the motion for summary judgment could have been more specific.

I recognize that the opposing party is under a duty to act diligently and in good faith when faced with a motion for summary judgment, but where the dereliction is technical the opposing party should not be hurried out of court. 6 Moore’s Federal Practice ¶ 56.15[6]. In Littlejohn v. Shell Oil Co., 483 F.2d 1140 (5th Cir. 1973), Judge Griffin Bell stated:

“It is true that this representation was not in affidavit form by plaintiff in person but we think that the written representation by his lawyer, an officer of the court, is in the spirit of Rule 56(f) under the circumstances. Form is not to be exalted over fair procedures.”

In short, when the opposing party’s affidavits do not measure up fully to the requirements of Rule 56(e), the Court should, nevertheless, in the exercise of a sound discretion grant a continuance or deny the motion for summary judgment where the opposing party is proceeding in good faith and his claim or defense has some merit.

A learned treatise, essay or pamphlet on a subject of science or art, which is testified to by an expert on the subject as being a standard or trustworthy authority on the subject, is admissible as an exception to the hearsay evidence rule. Alabama is in the distinct minority of states which follows this rule, but because of this, I feel that the party opposing the motion for summary judgment has presented at least a scintilla of evidence on the issue of the negligence of the defendant, and I believe that summary judgment should have been denied. I respectfully dissent.

JONES, J., concurs.


author: JONES, Justice.

text:
    Marjorie Grice VAN METER and Lexine D. Grice v. Mary Y. GRICE.
    78-213.
    Supreme Court of Alabama.
    Jan. 25, 1980.

      J. Connor Owens, Jr., Bay Minette, for appellants.
    Robert P. Denniston of Gallalee, Denni-ston, Cherniak & Moon, Mobile, for appel-lee.
   JONES, Justice.

Plaintiff brought an in rem proceeding (§§ 6-6-560, et seq.) to quiet title to certain property in Baldwin County, claiming entitlement on the basis of adverse possession. Defendants counterclaimed, alleging that they, together with Plaintiff, were coten-ants and seeking partition of the land in question. The trial Court, under ARCP 49(b), required the jury to return a special verdict in the form of written findings upon three issues of fact. The questions and the jury’s written findings are set forth as follows:

“1. Were the parties co-tenants? Yes
“2. If the answer is yes, was there an ouster? Yes
“3. If the above answer is yes, did the Plaintiff exercise adverse possession of the property ten years next preceding July 22,1974? Yes.”

From the Court’s judgment in favor of Plaintiff, Defendants appeal.

The facts giving rise to this suit are substantially as follows: In 1905, C. F. Grice received a conveyance, but never took possession, of an 80-acre tract of land in Baldwin County, which is the subject of this action. C. F. Grice died in 1912, leaving five children: Charles Dudley, Marion, Annie, Bertha, and Robert. Appellee (Plaintiff below) Mary Y. Grice is the daughter of Charles Dudley. Appellants are Lexine Grice (widow of Marion) and Marjorie Grice Van Meter (daughter of Robert).

In 1924, Claude Justice acquired a tax deed to the subject property; and, though never living thereon, he assessed and paid the taxes in his name until his death in 1959. He also executed numerous timber, turpentine, and oil leases during this period. In 1955, Charles Dudley built a house on the land which he occupied with his daughter, Mary Y. Grice (Appellee), until his death in 1962. At the time he began to occupy the land, Charles Dudley assessed the property in the names of himself, his brothers, and his sister. In 1957, he executed a mortgage in which he declared himself and his daughter as owning an undivided one-fourth interest in the land. (One of C. F. Grice’s children had since died without leaving heirs, thereby accounting for the one-fourth, rather than one-fifth, interest claimed.)

In 1957, Claude Justice filed an ejectment suit to recover possession of the subject property. In response to the suit, Charles Dudley filed a motion requesting the court to ascertain the amount of taxes due to Justice, as well as other expenses, and alleging that the heirs of C. F. Grice had remained in possession of the subject property continuously since the tax sale. No further action was taken in connection with that suit, which abated upon Justice’s death.

Charles Dudley, who died in 1962, is survived by his daughter Mary — Plaintiff/Ap-pellee. Plaintiff assessed and paid taxes on the property for the years 1963 through 1967. In 1968, the assessment in Plaintiff’s name was not paid and the property was sold to the State for tax delinquency. The property remained on the delinquency docket from 1968 through 1972. In 1973, Plaintiff redeemed the property from the State and thereafter continued to pay the assessment. She brought this quiet title action in 1974.

' Two dispositive issues are urged by the Appellants (Defendants below): 1) That the evidence adduced at trial was legally insufficient for a jury finding that Plaintiff had “ousted” Defendants so as to have terminated their cotenancy relationship; and 2) that Justice’s tax deed was invalid and, therefore, could not have operated to terminate the cotenancy existing among C. F. Grice’s heirs upon his death in 1912.

Appellee (Mary Grice), on the other hand, contends: 1) There is ample evidence of ouster to support the jury’s second “special finding”; and 2) the tax deed, assuming its invalidity, operated, at the very least, as color of title, which, when coupled with the requisite adverse possession, ripened into title.

Appellants counter Appellee’s latter contention by asserting that C. D.’s occupation of the land on behalf of himself, his brothers and sister, beginning in 1955 and continuing until his death in 1962, created a new cotenancy among the parties, even assuming that the original relationship had terminated.

Before addressing the contentions of the parties, we return to the record for a more complete understanding of the trial Court’s final decree. After reviewing the pleadings, the evidence adduced at trial, and the jury’s response to the three “special findings”, the Court’s “Final Judgment” recites:

“C. D. Justice was the owner of said property in 1955. Plaintiff’s father and his two brothers and sister had no title to said real property when Plaintiff and Plaintiff’s father, in 1955, went into possession thereof for the benefit of themselves and of Plaintiff’s two uncles and aunt. The jury has found that they were at some time tenants in common. The earliest time this could have occurred was in 1955. The jury having found that the Plaintiff ousted the co-tenants and exercised adverse possession of the property during the ten years next preceding July 22, 1974, the naked possession by said tenants in common, continuing for less than ten years, did not continue for sufficient duration to ripen into any title on the part of said Charles D. Grice, Robert Grice, Marion Grice and Annie Grice Daughtery.
“The Plaintiff has, under the provisions of Section 6-6-566(c) of the Alabama Code of 1975, established conclusive evidence of title to said lands in the Plaintiff against the Defendants, Lexine D. Grice, Annie Grice Daughtery, Marjorie Grice Van Meter, and the unknown heirs of C. D. Justice, and against all other persons. The Defendants, Lexine D. Grice, Annie Grice Daughtery, and Marjorie Grice Van Meter, have no title to said property nor any interest therein, and are not entitled to a partition thereof.”

The trial Judge’s findings and conclusions of law are abundantly clear: Given the fact that Justice’s tax deed ripened into title at some point in time between 1924 and 1955 (which finding is amply supported by the evidence), the Grice heirs “had no title” when Plaintiff and her father went into possession of subject property in 1955. Given the further facts (as found by the jury) that the Grice heirs were tenants in common in 1955 and that Plaintiff (Mary) ousted her “cotenants” and adversely possessed the property against them “during the ten years next preceding July 22, 1974” (the filing date of the instant litigation), the Grice heirs, other than Mary, did not possess adversely to the Justice heirs for the requisite ten-year period. Thus, Mary alone, to the exclusion of the remaining Grice heirs, adversely possessed the property against the Justice heirs so as to ripen her title in the property. ,

The trial Judge calculated the relevant time periods as follows: Because Mary’s adverse possession against the remaining Grice heirs commenced not later than July 22, 1964 (commencement of the ten-year period), and because the cotenancy relationship had its earliest inception in 1955, the duration of this period of adverse possession was only nine years. Thus, reasoned the trial Judge, Mary alone, either by “tacking” her period of adverse possession to her father’s, or in her own right (from the date of her father’s death in 1962 to the date of the filing of the instant action in 1974), has possessed the property adversely to the Justice heirs for the requisite period.

On the one hand, then, the jury’s “special findings” reflect: 1) The relationship among the Grice heirs as co tenants; 2) the ouster by Mary as against the remaining Grice heirs; and 3) Mary’s adverse possession of the property as against these heirs (the Defendants); while, on the other hand, the central thrust of the trial Court’s rationale for its holding is the Grice heirs’ adverse possession against Justice and his heirs. Having held that the Justice heirs had been divested of title by adverse possession of the property by Charles Dudley and his daughter Mary, the trial Court then turned to the ultímate inquiry: Whether such adverse possession inured to the benefit of Mary alone, or to the benefit of all the Grice heirs? It was to this latter inquiry that the Court submitted the three “special findings” to the jury; and it was the jury’s responses thereto that the trial Court incorporated into its “Final Judgment,” upholding title in Mary to the exclusion of the remaining Grice heirs.

Understandably, then, counsel for the parties have concentrated their arguments, in large measure, on the sufficiency of the evidence bearing on the issue of ouster. Whether the legal principle of ouster is a viable issue, however, is dependent upon the validity of the jury finding that the parties (i. e., the Grice heirs) were co-tenants. Put another way, only if the parties were cotenants is the question of ouster relevant to the ultimate issue of title to the subject property. This is true because co-' tenants, absent ouster, cannot hold adversely one against the other.

Upon C. F. Grice’s death in 1912, the subject property descended to his heirs, holding as tenants in common. This coten-. ancy among the heirs would have continued to exist until extinguished by action of the cotenants or by operation of law; and, although, admittedly, the property was sold for taxes to Claude Justice in 1924, this tax sale, by itself, was not sufficient to terminate the cotenancy. Where property of tenants in common is sold at a tax sale, the cotenancy continues to exist so long as there remains a right of redemption in the owners of the property. Truver v. Kennedy, 425 Pa. 294, 229 A.2d 468 (1967); see, also, Severson v. Simon, 110 N.W.2d 289 (N.D.1961).

. The statute governing redemption at the time of the tax sale and deed is substantially the same as that now codified in § 40-10-120, Ala.Code 1975, with the exception that the redemption period now has been changed from two years to three years. The grace period for owners under a disability extends for an additional one-year period after removal of the disability:

“Real estate sold for taxes and purchased by the state may be redeemed at any time before the title passes out of the state, or if purchased by any other purchaser, may be redeemed at any time within two years from the date of the sale by the owner, his heirs or personal representatives, or by any mortgagee or . an infant or insane person entitled to redeem at any time before the expiration of two years from the sale, may redeem at any time within one year after the removal of his disability . . . .” (§ 3109, Code 1923.)

Although the statute refers to “two years from the date of the sale,” this has been interpreted as two years from the date of issuance of the tax deed, the “final, consummating act of sale.” Pugh v. Youngblood, 69 Ala. 296, 298 (1881). Because the tax deed was issued to Claude Justice in 1924, those of the Grice heirs not under a disability at this time had until 1926 to redeem. The youngest of the Grice heirs was 7 years of age at the time of sale; thus, he had one year to redeem after reaching majority sometime in 1938. It follows, then, that the right of redemption in the Grice heirs was lost sometime in 1939.

Appellants argue, however, that the tax sale and deed to Claude Justice were invalid and therefore could not have operated to extinguish the cotenancy. This argument ignores the long-standing law in this State that, regardless of the validity of the sale, continuous adverse possession of the land by the purchaser at a tax sale for three years after he becomes entitled to demand a tax deed, or in fact is lawfully issued one, bars an action to recover the land by the former owner. Trehern v. Wilkerson, 356 So.2d 1185 (Ala.1978); Odom v. Averett, 248 Ala. 289, 27. So.2d 479 (1946); Bedsole v. Davis, 189 Ala. 325, 66 So. 491 (1914). It is unnecessary to recite the acts of Claude Justice constituting the three years’ continuous adverse possession under the then applicable statute (now codified in § 40-10-82). Suffice it to say, there was ample evidence to support the trial Court’s finding that C. D. Justice was the owner of the property in 1955.

Nevertheless, in 1955, one of the Grice heirs, Charles Dudley, entered the property claiming it on behalf of himself and his brothers and sister. If these enunciatory acts, including the assessment and payment of taxes in the names of all the Grice heirs, were sufficient to create a new cotenancy among the heirs, it follows that, short of ouster, neither Charles Dudley, nor his daughter (Appellee here), could have possessed the land adversely to the other heirs.

Possession of one cotenant is presumptively the possession of all and inures to the benefit of all. 3 Am.Jur.2d, Adverse Possession, § 172 at 256. On the other hand, if Charles Dudley’s acts were not sufficient to establish a cotenancy, the foregoing presumption does not apply.

A tenancy in common is defined as that character of tenancy whereby two or more persons are entitled to land in such manner that they have not only an undivided possession, but also several freeholds or interests. Kellum v. Williams, 252 Ala. 71, 39 So.2d 573 (1949), cited in 20 Am.Jur.2d, Cotenancy and Joint Ownership, § 22 at 115; Glass v. Cook, 257 Ala. 141, 57 So.2d 505 (1952); Ruffin v. Crowell, 253 Ala. 653, 46 So.2d 218 (1950), cited in 86 C.J.S. Tenancy in Common § 4 at 362. A tenancy in common is thus characterized by a- single unity—that of possession, or of the right to possession, of the common property. If such unity exists, there is a tenancy in common, irrespective of the. concurrence of any other unities; and, if it does not exist, the estate is not a tenancy in common. Shepard v. Mt. Vernon Lumber Co., 192 Ala. 322, 68 So. 880 (1915), cited in 20 Am.Jur.2d, supra, at 116.

In the early case of Smiley v. Dixon, 1 Penrose & Watts 439 (Penn.1830), two persons had purchased from a third person who they supposed had good title, but who, it was afterwards ascertained, had not even color of title. The Pennsylvania Supreme Court held there was nothing in the purported cotenancy to prevent one of the parties from subsequently purchasing the property from the true owner for his own exclusive benefit. The supposed cotenants, by their purchase, had acquired neither possession nor the right to possession, thereby leaving each free to later purchase the property without obligation to the other. See, also, Roberts v. Thorn, 25 Tex. 728, 737 (1860) (“[T]he parties acquired nothing by their purchase, and consequently, had no title or estate to create a tenancy in common.”).

If a tenancy in common is characterized by a common possession or right of possession, it follows that C. D.’s entry onto the subject property in 1955 could not by itself create a new cotenancy among the Grice heirs. Only C. D., among the Grice heirs, ever went into possession. Therefore, there was no common possession; and, although C. D. claimed on behalf of himself and the other heirs, such declaration conferred no right of possession in either himself or his brothers and sister, inasmuch as title to the property had become absolutely vested, without right of redemption, in the tax purchaser—Claude Justice. In the absence of possession or right of possession, there was no estate and, thus, no tenancy in common. It follows that the presumption that possession by one cotenant is possession by all does not apply.

The above does not preclude, however, consideration of equitable principles, e. g., resulting and constructive trusts and equitable estoppel or its equivalent, which might support an interest by the Appellants in the disputed land. Freeman on Cotenan-cy and Partition (1886), for example, suggests that even where parties fail to be nominally cotenants, due to the absence of possession or right of possession, equitable considerations may justify the imposition of restraints on the parties as if they were in fact tenants in common:

“[T]o say generally that co-grantees are not liable to the restraints imposed on cotenants merely because they obtained no title, would be to except out of the general rule those cases in which equitable considerations most imperatively demand its enforcement. No doubt in these, as in all other cases, the test to be applied is to consider the actual relations of the parties rather than their nominal relations. If, notwithstanding the fact that they are named as co-grantees in a deed, they acquired nothing from their purchase, and either never exercised the rights of joint owners, or have ceased to consider themselves within the relation of cotenancy on account of their failure of title, then both should be free to deal with the subject matter of their former purchase. If, on the contrary, though they have no title, the parties continue to regard each other as cotenants, and if, on that account, they are apparently sustaining toward each other relations of trust and confidence, then neither should be at liberty to act in hostility to the interests of the other.” Freeman on Cotenancy and Partition, § 163 at 241. (Emphasis added.)

This approach is suggested by the- early Alabama case of Coleman v. Coleman, 173 Ala. 282, 55 So. 827 (1911). Mr. Justice Simpson, writing for the Court, held that a former tenancy in common ceased to exist upon foreclosure of the mortgage on the subject property and after expiration of the time for redemption. In that case, as in Smiley v. Dixon, supra, the Court held that “[e]ach former tenant in common . had an equal right to purchase that property, just as might have been done to any other property in which they had no title or right. The reciprocal rights of tenants in common necessarily cease when they cease to be tenants in common.” Coleman v. Coleman, supra, at 288, 55 So. at 828. But having found the former cotenancy extinguished, the Court went on to consider whether the relationship of the parties was such as to justify the imposition of a trust. The Court concluded, however, that “[t]he facts as stated in the bill are not sufficient to raise either a resulting or a constructive trust in the land.” Coleman v. Coleman, supra, at 289, 55 So. at 828.

We also find case authority from other jurisdictions involving tenancies in common which ceased to exist or never came into being, due to absence of a right to possession, in which the parties were held to the same standards toward one another as if they were in fact tenants in common. See, e. g., 2 C.J.S. Adverse Possession § 47, at 711, and cases cited at note 90. Many of these cases involve parties holding a common color of title. Thus, it is stated that the adverse possession of property by one cotenant under a color of title held by all the cotenants inures to the benefit of all so as to ripen title in each according to his respective interest. 3 Am.Jur.2d, Adverse Possession, § 172, at 256.

Color of title, even when held in common, however, of itself does not constitute a tenancy in common. Color of title confers no right to possession and, therefore, cannot be an estate held by tenants in common. If a constructive trust is due to be imposed on account of a relationship among the parties arising out of a commonly held color of title, the result, of course, will be the same as if they were cotenants. Nevertheless, there is value in maintaining the distinction between the legal concept of cotenancy, which exists due to the coten-ants’ equal right of possession, and the principle of a constructive trust which, for equitable reasons, may be imposed upon the parties to create a tenancy in common, even where one did not previously exist.

As already noted, where two or more parties hold a common color of title, the purchase or possession of the subject property is frequently held to inure to the benefit of all. “Color of title” is a writing which, in appearance, purports to transmit title, or the right of possession, but, which, in reality, does not. Bradley v. Gordon, 240 Ala. 556, 200 So. 736 (1941); Bowles v. Lowery, 181 Ala. 603, 62 So. 107 (1913). In general, any instrument purporting to convey the land may be color of title, however defective or imperfect it is, and no matter from what cause it is invalid. Thus, color of title may be evidenced by a contract for sale of the land, by a quitclaim deed, by a deed for partition, by words of transfer written on the back of a deed, or by a will. 3 Am.Jur.2d, Adverse Possession, § 111, at 195-197.

The “writing” here consisted of a conveyance of the subject property to C. F. Grice, the common ancestor of C. D. Grice and his brothers and sister. Significantly, there is neither a will nor any other “writing” which purports to convey the subject property to the Grice heirs. In Deffeback v. Hawke, 115 U.S. 392, 6 S.Ct. 95, 29 L.Ed. 423 (1885), the Supreme Court stated, “There can be no color of title in an occupant who does not hold under any instrument, proceeding, or law purporting to transfer to him the title or to give to him the right of possession.” The implication appears clear that merely a deed or conveyance in the name of an ancestor, by itself, is not sufficient to constitute color of title in an heir.

Although, as already noted, col- or of title is broadly construed to reach any writing which, on its face, purports to transfer title, it must at the very least mean a conveyance to the person claiming “color of title” and not to another. This would appear to follow from the requirement that one who claims color of title must do so in good faith. Deffeback v. Hawke, supra; Goodson v. Brothers, 111 Ala. 589, 20 So. 443 (1896). One cannot claim under color of title when he has conveyed the subject property away to another. He who claims color of title under a writing in the name of another, even though closely connected, is not likely to possess reliable knowledge of the property’s subsequent history, whether it was conveyed or, as was the case here, sold for nonpayment of taxes. There is simply insufficient knowledge here upon which to base a claim of color of title in good faith. Likewise, the record before us fails to disclose any facts which would justify the imposition of a trust, constructive or resulting, on behalf of the nonpos-sessing Grice heirs — Appellants, here. See Coleman v. Coleman, supra.

We find no basis for a finding that the Appellants relied upon any material misrepresentation or for a finding of those elements of a confidential relationship essential to a constructive trust. Cole v. Adkins, 358 So.2d 447 (Ala.1978). Additionally, it is undisputed that none of the nonoccupying Grice heirs ever contributed to the payment of taxes on the property or to the defense of the ejectment suit brought by Claude Justice in 1957. Nor do we find any other evidence of those monetary elements essential to the imposition of a resulting trust. See Favre v. Austin, 361 So.2d 109 (Ala.1978).

Thus, if the “equitable considerations” referred to in Freeman are limited to color of title or to the imposition of a trust, neither of which is supported by the evidence in the instant case, the judgment below is due to be affirmed. It is clear, however, from a full reading of Freeman that these categories are not exclusive; nor does Coleman so hold. That the application of these “equitable considerations” is not confined to color of title, imposition of a trust, or to a co-grantee context is borne out in the second sentence of the above quoted language from Freeman : “no doubt in these, as in all other cases, the test to be applied is to consider the actual relations of the parties rather than their nominal relations.”

We return again to the record to determine whether there are other equitable considerations which impose restrictions upon the possessing party (the Plaintiff) in like manner as those imposed among cotenants. Understandably, because of the mutually misconceived premise of cotenancy, neither of the parties sought a factual finding as to any special relationship of “trust and confidence” among the Grice heirs as that term is used in Freeman on Cotenancy and Partition. Thus, the record is silent as to any such findings.

Accordingly, we affirm that part of the final judgment below finding that Claude Justice was the owner of the subject property in 1955 and that his title has been divested by the adverse possession of Charles Dudley Grice and his daughter Mary; and we reverse and remand this cause for further proceedings to determine whether such possession inures to the benefit of Mary alone or to the benefit of all of the known Grice heirs as tenants in common.

In deciding the ultimate issue, we believe the trial Court is bound to find that C. D.’s conduct toward his brothers and sister evinced an unmistakable intent to treat them as cotenants though, in fact, no coten-ancy existed. Unquestionably, this is the issue to which the jury was attempting to respond when they answered the first “Special Finding” in the affirmative. Because of the absence of the legal relationship of cotenancy, however, the second “Special Finding” on the issue of adverse possession was misplaced.

The principles of law and equity enumerated in this opinion require that new and different inquiries be substituted for those submitted to the jury in the original proceedings. Given the undisputed initial intent of C. D. to treat all the Grice heirs as tenants in common (thus partially satisfying the first of the two-pronged test suggested in the above-quoted last sentence from Freeman), the remaining inquiry centers on the continuing and sustaining nature of that relationship of trust and confidence among the Grice heirs as it relates to the possession of the property by C. D. and his daughter on behalf of and for the use and benefit of the nonpossessing heirs.

We adopt and paraphrase the Freeman test: Did the given intent of C. D. to treat his two brothers and sister as cotenants create a continuing regard, among all the heirs, of each other as cotenants; and did they, on that account, sustain toward each other relations of trust and confidence, so that, in equity and good conscience, Mary cannot now be permitted to act in hostility to the interest of the other heirs?

Relevant to this inquiry, but not so limited, would be any conduct by C. D., or his daughter Mary, inconsistent with this continuing relationship; and whether such conduct, if any, was brought to the attention of the nonpossessing heirs. Put another way, were the reasonable expectations of the nonresident heirs, arising out of the conduct of C. D. and his daughter, such as would lull reasonable persons into a false sense of security with respect to their interest in the property?

Our suggestion of the pertinent questions is not to be construed in any manner as a suggestion of their answers. We believe'it may be instructive to the trial Court, however, to make the following observations: If the issue of ouster were properly before us for decision, we would hold that the evidence falls far short of meeting the Plaintiff’s awesome burden of proving ouster where the contesting parties are, in fact, tenants in common. See Tyson v. Jackson, 364 So.2d 1140 (Ala.1978). But, here again, this is not to be understood as equating Plaintiff’s burden of proof as to the issues on remand with the heavy burden cast on a possessing cotenant who seeks to prove ouster, sustaining title by adverse possession against nonpossessing cotenants.

On remand, the trial Court may wish to exercise its discretion in favor of granting the request of either party to adduce further evidence on the remanded issues. An advisory jury is a matter solely within the trial Court’s discretion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.

      . The record before us fails to disclose any evidentiary support for the claim of possession by any of the Grice heirs prior to the possession by C. D. and his daughter in 1955.

      . See Tyson v. Jackson, 364 So.2d 1140 (Ala.1978).

      . The tax sale actually occurred early in 1918, but Justice acquired his tax deed from the State in 1924.


text:
    FIRST NATIONAL BANK OF BIRMINGHAM v. Marjorie N. CURRIE, Successor-Trustee of the Testamentary Trust of Ralph E. Nicholson.
    78-536.
    Supreme Court of Alabama.
    Feb. 22, 1980.
    Jack B. Porterfield, Jr. and William T. Mills, II of Dunn, Porterfield, Scholl & Clark, Birmingham, for appellant.
    William H. Mills of Rogers, Howard, Redden & Mills, Birmingham, for appellee.
   EMBRY, Justice.

This is an appeal by defendant First National Bank of Birmingham from an adverse final judgment in a declaratory judgment action brought by plaintiff Marjorie N. Currie as successor-trustee of the testamentary trust of Ralph E. Nicholson. Inter alia, the judgment held: (1) all income of the testamentary trust of Ralph E. Nicholson, deceased, accumulated prior to the death of Marguerite H. Nicholson is the property of the testamentary trust of Ralph E. Nicholson; and (2) Marguerite H. Nicholson received, and distributed to herself during her lifetime, all property bequeathed her by paragraph G of Ralph E. Nicholson’s will. We affirm.

Issues

(1) Did the trial court commit error in holding that approximately $55,000 of trust income accumulated, prior to the death of Marguerite H. Nicholson, and undistributed at the time of her death, was the property of the testamentary trust of Ralph E. Nicholson, deceased, and not the property of the estate of Marguerite H. Nicholson, deceased?

(2) Was there credible evidence to support the trial court’s finding of fact that the deceased Marguerite H. Nicholson had been distributed all the property bequeathed her by paragraph G of Ralph E. Nicholson’s will?

Facts

Ralph E. Nicholson died in Jefferson County, Alabama, on 21 February 1936. His will was admitted to probate in the Probate Court of Jefferson County on 11 March 1936. In that will, Marguerite H. Nicholson, wife of Ralph Nicholson, was named executrix and trustee of the testamentary trust created by its provisions. She accepted the role of trustee and acted as such until her death on 4 August 1977. First National Bank of Birmingham is the executor of the will of Marguerite Nicholson.

The will of Ralph Nicholson contained the following provisions; the subject of controversy on this appeal:

“PARAGRAPH G:
“To deliver to herself, one-fourth of all bonds, notes and corporate stocks of which I shall die seized and possessed, which one-fourth of- said bonds, notes and stocks I hereby give and bequeath to her, to have and to hold to her forever.
“PARAGRAPH H:
“Out of the moneys belonging to my estate to make the following payments, to-wit:
“SECTION ONE: To use in and about the education, support and maintenance of each of my children, whether born before or after my death, until he or she shall become twenty-one years of age, such sums of money as said executrix shall consider reasonably necessary therefor.
“SECTION. TWO: To pay to herself, from time to time, and at least semi-annually, such sums of money as said executrix shall consider reasonably necessary for her support and maintenance. Said payments shall be made to her in addition to the property bequeathed to her in Paragraph G hereof, and not out of the proceeds thereof.
“SECTION THREE: When all of my children shall have become thirty years of age, or should my wife, Marguerite H. Nicholson, be living at that time, then and in that event, at the death of my wife, all the property belonging to my estate shall be distributed equally among my children who are then living, including any child or children born after my death, share and share alike. The lawful issue of any of my deceased children surviving at the time any distribution is actually made in pursuance of this paragraph shall take per stripes [sic] the share to which the father or mother of such issue would have been entitled if she or he were still living. The share to which any of my children would be entitled if living at the time of any distribution authorized in this paragraph shall, in the event of the death of such child without issue before such distribution is actually made, be distributed among my other children, share and share alike, as herein-above directed, just as if said child had never been born.” (Emphasis added.)

The parties stipulated there was approximately $55,000 income earned by the testamentary trust which accumulated and was not distributed to Marguerite Nicholson. There was no evidence presented concerning the time at which this income was earned; however, the evidence was clear this accumulated income had not been distributed as of the date of Marguerite Nicholson’s death. It is not clear from the evidence whether any income from the trust was ever distributed to Marguerite Nicholson; however, the evidence did show she had a substantial separate estate.

After the death of Marguerite Nicholson, Marjorie N. Currie, daughter of Ralph and Marguerite Nicholson, petitioned, as permitted by § 19-3-212, Code 1975, the Jefferson County Circuit Court for appointment as successor-trustee of the testamentary trust of Ralph Nicholson, deceased. She was appointed and then filed a complaint seeking: instructions, construction of the will, and declaratory relief. She alleged that any income of the trust, which had not in fact been paid to Marguerite Nicholson during her lifetime, was an asset of the trust and subject to distribution to the beneficiaries of the trust pursuant to paragraph H, section 3, of Ralph Nicholson’s will. The complaint also requested the court to determine whether the property bequeathed to Marguerite Nicholson under paragraph G of the will had in fact already been distributed to her. See these provisions of the will supra.

First National Bank answered and cross-claimed, alleging the accumulated income under the trust was not subject to distribution to the beneficiaries of the trust and asserting it was entitled to the accumulated income as executor of the will of Marguerite Nicholson. The answer and cross-claim also put at issue the question of whether the securities bequeathed under paragraph G were in fact distributed to Marguerite Nicholson.

An ore tenus hearing was conducted and final judgment entered in favor of Currie, granting each relief for which she prayed.

Decision

First National Bank contends the trust created by Ralph Nicholson’s will was not a discretionary one. It urges this court to hold that paragraph H, section 2, of the will required the mandatory payment of trust “income” to Marguerite Nicholson. The bank reasons that such payments are mandatory because of the language “[t]o pay to herself, from time to time, and at least semi-annually * * * ” contained within section 2 of paragraph H. We cannot agree.

Both parties correctly agree that the key to resolution of any issue concerning a trust is the intention of the settlor. Corretti v. First National Bank of Birmingham, 290 Ala. 280, 276 So.2d 141 (1973); Edmonson v. First National Bank of Birmingham, 256 Ala. 449, 55 So.2d 338 (1951); Ingalls v. Ingalls, 256 Ala. 321, 54 So.2d 296 (1951). The controlling rule of law is that a court may only resort to extrinsic evidence to determine the settlor’s intent when the language of the trust is ambiguous. Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190 (Ala.1978).

In this case the settlor’s intent can clearly be ginned from the express language used in paragraph H, section 2, of the will. The amount to be paid to Marguerite Nicholson was clearly limited to “* * * such sums of money as said executrix shall consider reasonably necessary for her support and maintenance. * * ” (Emphasis added.) This language is clear to the effect that Marguerite Nicholson was only to distribute such sums, whether income or principal, as she deemed necessary for her support. This directive is obviously discretionary, not mandatory. The fact such sums were to be paid at least semi-annually does not negate the discretionary nature of the provision.

The fact no distributions were made indicates that Marguerite Nicholson determined she did not need any of the trust corpus or income for her support or maintenance. Because no distributions were made, the income of the trust remained part of the trust to be distributed according to the terms of paragraph H, section 3, of the will. The trial court correctly held this to be the case.

First National Bank further contends the trial court erroneously determined the property bequeathed by paragraph G of the will was distributed to Marguerite Nicholson. The bank argues that the ore tenus rule does not apply because only one witness testified and the rest of the evidence was documentary. We cannot agree.

The trial of this case was conducted before a judge without a jury. The court heard the oral testimony of Marjorie Currie and a substantial amount of documentary evidence was introduced. There were some inconsistencies in the evidence, but there was substantial and credible evidence to support the trial court's finding that the property bequeathed by paragraph G was distributed to Marguerite Nicholson. It is clear when a trial court sits without a jury and determines questions of fact which are in dispute, whether those facts come into dispute verbally or by the written word, the ore ten us rule of review must be applied and, under this rule, all reasonable presumptions in favor of the trial court’s findings must be indulged by the reviewing court. Hartford Accident & Indemnity Co., Inc. v. American Country Clubs, Inc., 353 So.2d 1147 (Ala.1977).

Based upon an examination of the will, the final judgment, the evidence, and the applicable rules of law, the judgment is due to be, and is hereby, affirmed.

AFFIRMED.

BLOODWORTH, MADDOX, FAULKNER and ALMON, JJ., concur.


text:
    Doris A. COBB, a/k/a Doris Ingram v. Frank E. BROWN et al.
    78-626.
    Supreme Court of Alabama.
    Feb. 22, 1980.
    Desmond B. Toler, Mobile, for appellant.
    Dan C. Alexander, Jr., Mobile, for appel-lees.
   EMBRY, Justice.

This is an appeal by plaintiff, Doris A. Cobb, from a final judgment in favor of defendants, Frank E. Brown and Margaret K. Brown, granting them the right to redeem certain real property and awarding them monetary damages for conversion of timber; that award was offset by plaintiff’s attorney fees and back taxes plus interest. We affirm.

This is the second time this case has been before us. See Cobb v. Brown, 361 So.2d 1069 (Ala.1978). In the first appeal, we reversed the judgment below and remanded the case for further proceedings on the ground that neither party had the necessary peaceable possession of the property to maintain an action to quiet title. We specifically found that the Browns had “scrambling possession,” insufficient to maintain an action to quiet title. Therefore, we remanded the case for further proceedings, especially pretermitting the issue of redemption under § 40-10-83, Code 1975, and all other considerations. Our original opinion should be referred to for a complete statement of the facts in this case.

On remand the Browns wrote a letter to the trial court asking it to allow them to redeem the property pursuant to § 40-10-83, Code 1975, and to award them $1000 in damages for conversion. The plaintiff, Cobb, treated the letter as a motion. After she filed a motion to quash that letter-motion, the trial court conducted an ore tenus hearing at which the case was submitted on both testimony and documentary evidence. Judgment in favor of the Browns resulted.

Cobb now contends the Browns waived the right to redeem under § 40-10-83, Code 1975, because they did not file a motion requesting redemption under that code provision before the first trial. That section reads as follows:

“When the action is against the person against whom the taxes were assessed or the owner of the land at the time of the sale, his heir, devisee, vendee or mortgagee, the court shall, on motion of the defendant made at any time •before the trial of the action, ascertain the amount paid by the purchaser, together with six percent per annum thereon, and a reasonable attorney’s fee for the plaintiff’s attorney for bringing this action, and shall enter judgment for the amount so ascertained in favor of the plaintiff against the defendant, and the judgment shall be a lien on the land sued for. Upon the payment into court of the amount of the judgment and costs, the court shall enter judgment for the defendant for the land, and all title and interest in the land shall by such judgment be divested out of the owner of the tax deed.” (Emphasis added.)

We cannot agree with Cobb’s contention. This case was remanded specifically for the trial court to decide the issue of redemption under § 40-10-83. The Browns filed their motion before the trial court conducted any proceedings on remand. That motion sufficiently complied with § 40-10-83. Moreover, the Browns raised the issue of re- . demption in their counterclaim to plaintiff’s complaint.

There is absolutely no merit to plaintiff’s res judicata arguments since we specifically pretermitted all other considerations in our first opinion. We specifically determine on the first appeal that the Browns had “scrambling possession.” “Scrambling possession” is sufficient to permit redemption under § 40-10-83. Tanner v. Case, 273 Ala. 432, 142 So.2d 688 (1962). The trial court took evidence ore tenus in determining, on remand, the Browns’ right to redeem and recover damages for conversion. That judgment will not now be overturned. It is neither clearly and palpably erroneous nor manifestly unjust.

Accordingly, the judgment must be, and is hereby, affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, AL-MON and BEATTY, JJ., concur.


text:
    Marguerite GORDON, as Executrix, etc., et al. v. Samuel L. LOVE et al.
    79-22.
    Supreme Court of Alabama.
    Feb. 22, 1980.

      Maurice A. Downing, Mobile, for appellants.
    Sam W. Irby, of Taylor, Benton, Irby & Gibson, Fairhope, for appellees.
   EMBRY, Justice.

This is an appeal from a judgment entered, after nonjury trial, in favor of plaintiffs, Samuel L. Love and Bernice C. Love, and against defendants, Marguerite A. Gordon, as executrix of the estate of Leslie E. Gordon (deceased), and Mrs. Leslie E. Gordon (Marguerite A. Gordon), in an action of ejectment and in the nature of ejectment. We affirm.

Issue

Whether the trial court erred to reversal by finding the Loves’ title to the property in litigation is superior to the Gordon title, and by awarding possession of that property to the plaintiffs?

Facts

The land in dispute is located on a so-called “island,” or peninsula, in the Blakely River in Baldwin County. It is 300 feet long and abuts the state right-of-way along Battleship Parkway. There is substantial controversy presented in this case as to whether this “island” or peninsula existed in 1846 when the government patent shown in plaintiffs’ abstract of title was issued, or whether this land was formed by fill or natural accretion.

The defendants’ alleged right to possession of the disputed land stems from a sublease from one Walter Forester, who had leased the property from the purported owners, Olive M. Worcester and Rosa Worcester. There was evidence the deceased, Leslie E. Gordon, had lived on the property since 1945 and that his widow, Mrs. Gordon, had lived there since 1962. The evidence further disclosed that no rental payments had been made by defendants since November of 1977. The evidence contains a decree of the Baldwin County Circuit Court of 24 May 1976 which voided the lease to Walter A. Forester and all subleases derived therefrom.

The abstract of title produced by the plaintiffs, claimed by them to include the property in dispute, traces title back to a government patent dated 1 October 1846. That abstract reveals that title descends into Rosa Worcester by warranty deed dated 23 July 1952 from Olive Worcester; the deed was not recorded until 19 January 1965 and it conveyed property other than that in litigation. According to the abstract, Olive M. and Rosa Worcester thereafter executed a lease to Walter Forester dated 25 April 1955 covering the subject property together with other property; this lease was not recorded until 30 September 1969. The abstract further reveals that Walter A. Forester subleased the subject property to Leslie E. Gordon on 1 May 1955; the lease was to expire on 31 April 1965. Thereafter, Walter A. Forester, again subleased the subject property to Leslie E. Gordon on 1 May 1965 for a period of eighteen years; the lease was later amended to add Mrs. Gordon as a lessee. The abstract then reveals that the lease to Walter A. Forester, and all subleases derived therefrom, were voided by the above mentioned Baldwin Circuit Court decree dated 24 May 1976.

The abstract allegedly demonstrates that title to the property in controversy, together with other property, descended from Rosa Worcester by mesne conveyances to plaintiffs, the Loves. At trial Mrs. Gordon testified she had never paid taxes on the property and her only right to possession was under a lease to her husband and herself.

The heart of this controversy centers on the testimony of plaintiffs’ surveyor and a plat or map, dated 1845, contained in plaintiffs’ abstract. The surveyor’s testimony appears to conflict as to whether the property in question was in existence in 1846 according to maps from that period. However, this conflict appears to result from the geographical changes that have taken place in the area since 1846. The surveyor did testify that the land in question is not a true island but is a combination of peninsulas attached to the shore.

After an ore tenus trial, the trial court entered final judgment granting plaintiffs their requested relief, except for damages. After their motion for new trial was denied, defendants perfected this appeal.

Decision

The essence of defendants’ argument is that the abstract produced by plaintiffs does not cover the land in question; therefore, plaintiffs did not meet their burden of proving superior title to that of defendants. Defendants support this argument by contending the land in question did not even exist in 1846; the date back to which plaintiffs! abstract purportedly traces their title. Defendants argue the land was originally submerged under navigable waters and had subsequently been built up by fill or artificial accretion; therefore, the State of Alabama owns the land. While we agree the evidence is certainly not one-sided in this case, we cannot find the trial court’s judgment was erroneous as a matter of law, or based on findings of fact not supported by credible evidence, or that such findings are clearly and palpably erroneous; therefore, we must affirm. See, e. g., English v. Brantley, 361 So.2d 549 (Ala.1978).

It has long been the rule of law in Alabama that the plaintiff in an ejectment action is not required to prove title against the whole world; but it is sufficient if he shows good title against the defendant. See, e. g., Garrett v. Lyle, 27 Ala. 586 (1855). It is generally sufficient for the plaintiff to prove title back to a common source of title in an ejectment action; because neither party in an ejectment action can deny the title under which he claims. Jordan v. Tinnin, 342 So.2d 748 (Ala.1977); Atlas Subsidiaries of Florida, Inc. v. Kornegay, 288 Ala. 599, 264 So.2d 158 (1972); Payton v. Madison, 251 Ala. 353, 37 So.2d 588 (1948).

In this case there was credible evidence to support a finding by the trial court that both plaintiffs’ and defendants’ alleged right to possession was derived from a common source, Olive and Rosa Worcester. This court stated in Payton v. Madison, supra :

“It has been said in some of our cases that, where a plaintiff in ejectment relies upon a conveyance from another it is necessary for him, in order to make out his right to recover, to show a regular chain of title back to some grantor in possession, or to the government. McMillan v. Aikin et al., 189 Ala. 330, 66 So. 624; Jackson Lumber Co. v. McCreary et al., 137 Ala. 278, 34 So. 850; Baucum v. George, 65 Ala. 259, 267; Henry v. Brannan, 149 Ala. 323, 42 So. 995; Stephens v. Stark, 232 Ala. 485,168 So. 873. But this rule does not apply if the defendant stands in a relation which estops him from denying plaintiff’s title, as where the plaintiff shows that he and the defendant both claim from a common source of title. Feagin, Kendall & Co. v. Jones, 94 Ala. 597, 10 So. 537; Ware v. Dewberry et. al., 84 Ala. 568, 4 So. 404; Pollard v. Cocke, 19 Ala. 188. If the defendant shows that he claims title from the same source as the plaintiff, then the plaintiff is relieved of the burden of showing title, back to some grantor in possession or to the government. Florence Building & Investment Association v. Schall et al., 107 Ala. 531, 18 So. 108. It follows, of course, that where the defendant claims under a deed from the plaintiff he cannot question the plaintiff’s title. Elliott v. Dycke, 78 Ala. 150.” 251 Ala. at 355, 356, 37 So.2d at 591.

There was credible evidence to support a finding that plaintiffs had superior title. The defendants’ only right to possession of the property was a sublease stemming from plaintiffs’ predecessor in title. That sublease had been voided by the circuit court decree to which we previously alluded. Conversely, there was credible evidence demonstrating that plaintiffs had title to the property by way of mesne conveyances from Rosa Worcester, the lessor of defendants’ lessor.

The judgment of the circuit court not being erroneous and supported by credible evidence is due to be, and is, affirmed.

AFFIRMED.

FAULKNER, JONES, ALMON and BEATTY, JJ., concur.


author: PER CURIAM.

text:
    Cherie KIRKLAND a/k/a Cherie Brantley v. William C. BRANTLEY.
    79-90.
    Supreme Court of Alabama.
    Feb. 22, 1980.
    Kenneth Cooper, Bay Minette, for appellant.
    Edward T. Hines and Joe B. Thompson, Jr., of Garrett & Thompson, Brewton, for appellee.
   PER CURIAM.

This is an appeal from a declaratory judgment decreeing that William C. Brant-ley, the father and next of kin of William Charles Brantley, Jr., deceased, was the preferred person to administer the decedent’s estate. We affirm.

William Charles Brantley, Jr. died intestate at or near Flomaton, Alabama, August 31, 1978, survived by his father, William C. Brantley, and mother, Mary Dixon. Brant-ley petitioned the probate court for letters of administration. Before letters were granted, Cherie Kirkland, a/k/a Cherie Brantley, petitioned for a removal to the Circuit Court of Escambia County, alleging that she was the wife of William Charles Brantley, Jr., and that she was the preferred person to be granted letters. After removal, Brantley filed his petition for a declaration of the legal relationship between Cherie Kirkland and his deceased son, prior to his death. The court heard the cases ore tenus, and decreed that there was no legal marital relationship of any kind between Ms. Kirkland and William Charles Brantley, Jr., and that the father was the preferred person to be granted letters of administration. Ms. Kirkland appealed on the ground that the evidence was sufficient to prove that a common law marriage existed between her and William Charles Brant-ley, Jr.

The trial court heard several witnesses for both parties during the trial. The evidence on behalf of Cherie was insufficient, as we review it, to establish a common law marriage. Her own testimony showed that even though they lived together, they were not husband and wife. She said that they had planned to get married on the same weekend that his brother George got married, but “put it off.” Moreover, she testified they were “going through a ceremony” the next week he was off, but meanwhile, William Charles Brantley, Jr. was killed.

The testimony of the decedent’s father showed that he was quite concerned, from a moral point of view, that they were living together, and at the funeral home, after his son’s death, he asked Cherie if she and his son ever married. He testified that she replied negatively.

The record is without any direct proof that Cherie and William Charles ever mutually agreed and consented by any words that they were husband and wife. Cf. Murphy v. Jacobs, 249 Ala. 594, 32 So.2d 306 (1947).

We have reviewed the entire record in this case, and we conclude that the trial court’s decree was supported by the evidence.

AFFIRMED.

TORBERT, C. J., and FAULKNER, AL-MON, EMBRY and BEATTY, JJ., concur.


text:
    James R. SPEARS v. Max SHORT.
    No. 79-299.
    Supreme Court of Alabama.
    Feb. 22, 1980.
    Jack W. Smith, of Smith & Smith, Do-than, for appellant.
    George E. Trawick, Ariton, for appellee.
   PER CURIAM.

Spears filed suit April 20, 1978 against Short alleging fraud in the sale of a 1974 truck to him on or about January 29, 1976. Short’s answer was that the claim was barred by the statute of limitations. Subsequently, Short moved for a summary judgment based upon the pleadings and affidavit of Spears. The court granted summary judgment, and this appeal is from that order. We affirm.

Spears testified that on February 27, 1976, he was told by a mechanic in Denver, Colorado, that the engine in the truck was a 1970 Detroit Diesel. Again, on March 24, 1976, he was told by a mechanic in Alma, Arkansas, that the engine was a 1970 model. Finally, on May 22, 1976, mechanics in Ozark, Alabama, told Spears that the engine in the truck bought from Short was a 1970 Detroit Diesel.

The trial court found that as a matter of law “the plaintiff had knowledge or knew that the engine in the truck was a 1970 Detroit Diesel or knew of such facts that would lead a reasonable man to discover that the engine was a 1970 Detroit Diesel.” We agree with the court’s finding, and affirm on authority of Amason v. First State Bank of Lineville, 369 So.2d 647 (Ala.1979) and Fuqua v. Barbe, 376 So.2d 202 (Ala.Civ.App.1979), certiorari denied by this Court on November 2, 1979.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.