author: FAULKNER, Justice. TORBERT, Chief Justice

text:
    E. H. DARBY v. Harvey F. ROBBINS, et al.
    79-955.
    Supreme Court of Alabama.
    Sept. 15, 1981.
    Rehearing Denied Feb. 5, 1982.
    Robert L. Potts and T. Michael Putnam of Potts, Young & Blasingame, Florence and Harold V. Hughston of Kirk, Rather & Hughston, Tuscumbia, for appellant.
    J. A. Keller of Keller & Cochran, Florence, for appellees.
   FAULKNER, Justice.

This is an appeal from a judgment in the Circuit Court of Lauderdale County determining a boundary line dispute and granting prescriptive public easement rights in a road in favor of plaintiffs, Harvey Robbins and George Pillow, Jr.

The facts are lengthy and hotly contested. In 1965, defendant Darby purchased the land known as the Adams tract and is the present owner. Plaintiffs, Robbins and Pillow, are the present owners of the land known as the Baker tract, purchased by them from Virginia Baker in 1978. The Baker property consists of three parcels, A, B, and C, respectively, from north to south, bounded by Wilson Lake on the east and bounded by Darby’s land, the Adams tract, on the west. This suit involves the determination of the boundary line between the Adams and Baker tracts and of the right of public access to the Baker property across the Adams tract.

The recorded chains of title to both properties place the boundary line at the section line between Sections 4 and 5, Township 3 South, Range 10 West, with the Adams tract in Section 5 and the Baker tract in Section 4. Plaintiffs, Robbins and Pillow, contend that the true boundary line is a thirty-year-old fence located over on the Adams tract, west of the section line purportedly dividing the two properties. The fence runs the length of parcels A and B of the Baker tract, but does not extend along tract C.

Robbins and Pillow further contend that their predecessor in title purchased the Baker tract in the early 1950’s relying upon the Collier survey which they contend has the section line and the thirty-year-old fence line in the identical position. Moreover, Mrs. Baker stated in her sworn affidavit that she and her husband had been in possession and control of the disputed strip during their entire period of ownership of the Baker tract, and that they had continually claimed up to the fence.

Darby, however, claims the section line as the true boundary line. He contends that the Collier survey was made in 1958, several years after Baker had purchased the property, and that the survey refers only to the section line with no mention of the fence. The fence was constructed by Darby’s predecessor in title and Darby has maintained the fence.

The evidence is clear that the disputed strip is thickly wooded. Plaintiffs elicited testimony to the effect that Baker and his tenants had adversely possessed to the fence through acts of woodcutting, mowing, and exploring paths throughout the area. Darby introduced testimony that his cattle had grazed on the strip and that his sons had hunted on it.

The disputed road runs across Darby’s pasture (Adams tract), entering its western end through a gate and ending east of the disputed fence. As to the nature of the road (public v. private), plaintiffs offered testimony to the effect that numerous public servants (meter men, mailmen, utility men, etc.) used the road regularly for access to the Baker tract, members of the public used the road to get to the points for recreational purposes, the county regularly graded the road, the gate was more often open than closed, and the road itself was 18 to 20 feet wide.

Darby introduced evidence to the effect that the use of the road was permissive and that Baker was aware of the permissive use. A retired county and state highway engineer testified that it was policy not to cross a cattle gap unless the gap was constructed across a public road, in which case workers were instructed to “blade it out” if owners failed to remove the gap after notification. Darby’s gap was never bladed out. Darby introduced further testimony that the actual used or traveled portion of the road was only 8 to 10 feet wide.

On July 17, 1979, plaintiffs filed suit alleging that the road through the Adams tract is a public road and that the fence line is the boundary between the two tracts. After numerous motions and hearings and after a “view” by the trial judge, the court found for plaintiffs and entered judgment. Darby appeals. This Court granted a stay of judgment pending appeal.

The trial court made specific findings of fact and entered judgment accordingly. We quote, in pertinent part, the lower court’s findings and judgment:

4. It is undisputed that there is now an access road, referred to by various terms such as “road,” “pig trail,” “pasture lane,” “field road,” “trail,” and “path,” across the Adams property to the Baker property. Aerial photographs in evidence indicate the existence of some sort of access road across the Adams property to the Baker property as early as 1934. This road had been used for access by the owners of the Baker property, persons leasing the Baker property, guests, and invitees. This road has been used by mail carriers, garbage collectors and meter readers. This road has been graded on occasions by employees of the state or county road departments. The Court specifically finds that this road has been in existence and use by members of the public, as well as the owners of the Baker property, for over forty years.
5. The road across the Adams property to the Baker property is eighteen feet wide, including any necessary ditches.
6. Prior to Pillow and Robbins obtaining the Baker property, the record title of the boundary line between the Baker property and the Adams property was the section line dividing Sections 4 and 5, in Township 3 South, Range 10 West, Laud-erdale County, Alabama. A fence was constructed in the early 1950’s by a Mr. Buffler who leased the Adams property. This fence ran generally north and south, but it was situated to the west of the section line between sections 4 and 5.
9. On tracts A and B of the Baker property the Court finds that the plaintiffs, Pillow and Robbins, and their predecessors in interest, had the open, notorious, adverse, hostile, continuous and peaceful possession of the property from Wilson Lake to the Buffler fence for more than twenty years preceding the filing of this action.
10. On tract C of the vacant property the Court finds that the boundary line is the section line between Sections 4 and 5 in Township 3 South, Range 10 West, Lauderdale County, Alabama.
Therefore, it is ORDERED, ADJUDGED, and DECREED as follows:
1. The Court declares that the boundary line between the Adams property, owned by the defendant E. H. Darby, and the Baker property, owned by the plaintiffs, Harvey F. Robbins and George D. Pillow, Jr., is the old fence line along tract A and tract B of the Baker property. The Court further declares that the boundary line between the parties along tract C of the Baker property is the section line dividing Sections 4 and 5 in Township 3 South, Range 10 West, Laud-erdale County, Alabama.
2. The Court reserves the right to appoint a registered land surveyor, not previously testifying as a witness in this cause, to make a survey of the lines in question and to present to the Court the correct legal description of the fence along sections A and B of the Baker property and of his or her opinion as to the correct location of the section [line] between Sections 4 and 5 in Township 3 South, Range 10 West, Lauderdale County, Alabama, along tract C of the Baker property.
3.The road serving the plaintiffs’ property across the Adams property, owned by the defendant E. H. Darby, is a public road, the plaintiffs have a right to free access, use and maintenance of this road. Further, the Court declares that the road has a maximum width of 18 feet including its travel portion and any ditches or shoulders. The defendant is enjoined and restrained from interfering with the use, maintenance and upkeep of the road and free passage of the plaintiffs and members of the public over such road.

As evidenced by the preceding discussion, the parties are in complete disagreement as to the facts and applicable law. Counsel for both sides have favored us with excellent briefs — both in factual summary and legal analysis. As Justice Bloodworth aptly pointed out in Blackwell v. Harris, 354 So.2d 7 (Ala.1978): “This is the classic case with which this Court has been confronted many, many times, the fence line v. a quarter section line — the adverse possessor v. the record title holder.”

Considering the nature of this case, therefore, we conclude, on the authority of Casey v. Keeney, 290 Ala. 94, 274 So.2d 68 (1973), set out in pertinent part below, that the ore tenus rule is applicable:

Although there was a conflict in the testimony in regard to some of the findings of the trial court, there was testimony to support all of the court’s findings in regard to appellee’s possession of the land in dispute.
The rule has been applied in boundary line disputes that questions of adverse possession are questions of fact properly determined by the trier of facts, and that the determination so made, where the evidence is taken orally, as here, is favored with a presumption of correctness and will not be disturbed on appeal unless plainly erroneous or manifestly unjust.
Moreover, as mentioned before, the trial court in accordance with permissible practice, made a personal inspection of the property before making its finding of fact. Hence, the decree is reviewed here as if it were a verdict of a jury, not to be disturbed unless it is plainly and palpably contrary to the weight of the evidence, [citations omitted]

The preceding authority applying the ore tenus rule is equally dispositive of the prescriptive public easement issue.

In view of our preceding holding, we find it unnecessary to address separately each contention raised by counsel for appellant Darby. Two issues in particular merit attention. First, contrary to Darby’s contentions, a fence does not have to be constructed and maintained by the party claiming by adverse possession in order to be an outstanding symbol of possession. Jordan v. Miller, 361 So.2d 1080 (Ala.1978). Second, Darby’s contentions that the ore tenus rule should not be applied because of alterations to the property between the time suit was filed and the time the judge viewed the property are without merit. There is no evidence of any abuse of discretion by the judge.

AFFIRMED.

MADDOX, JONES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and ALMON, SHORES and ADAMS, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

I cannot agree with the majority’s handling of the issue in this case concerning “the fence line v. a quarter section line— the adverse possessor v. the Record title holder.” The parties in this case are coterminous landowners. This case involves the erection of a fence on a line different from the section line. The variance, however, between this “fence” case and other “fence” cases is that this fence was not erected by the claimant but by defendant’s predecessors and that both parties put the disputed section “to such use or exercise[d] such dominion over it as in its present state it is reasonably adapted . . . . ” James v. Mizell, 289 Ala. 84, 88, 265 So.2d 866 (1972).

“In a boundary dispute, the coterminous landowners may alter the boundary line between their tracts of land by agreement plus possession for ten years, or by adverse possession for ten years.” Kerlin v. Tensaw Land & Timber Co., Inc., 390 So.2d 616, 618 (Ala.1980). In the case at hand, there is no evidence of agreement nor, do I believe, sufficient evidence of adverse possession.

The majority relies on Jordan v. Miller, 361 So.2d 1080 (Ala.1978), to counter appellant’s (defendant’s) argument that the evidence presented by the appellees (claimants) was insufficient to prove actual or exclusive possession by the appellees. Jordan dealt with a situation where the owner, not sure of the true boundary line, built his fence back away from the true line. Unlike the case at bar, the landowner in Jordan never used or occupied the strip in question. Jordan v. Miller, 361 So.2d at 1081. Appellant and appellee, contra to Jordan, each admit that the other made use of the land and that, due to the section being a densely wooded area, neither party occupied the strip of land in question.

In Knowles v. Golden Stream Fishing Club, Inc., 331 So.2d 253, 254 (Ala.1976), this Court stated:

Under" the law of Alabama, a person claiming title by adverse possession against the holder of the legal title, has the burden of showing actual, clear, definite, positive, notorious, open, continuous, adverse and exclusive possession of a definite tract under a claim of right for the time prescribed by law, and such possession is required to be shown by clear and convincing evidence. Prestwood v. Hunt, 285 Ala. 525, 234 So.2d 545 (1970).

In addition, as stated in Pendley v. Pendley, 338 So.2d 405, 407 (Ala.1976):

The Alabama rule is consistent with the general rule as stated in Tiffany, The Law of Real Property, Third Edition Abridged, § 550, pp. 480-481:
To enable one to acquire title by adverse possession his possession must be hostile to the true owner and must be under a claim of right and must exclude any recognition of the rights of the true owner. Intention is of prime importance. Intention to hold adversely must exist for the entire statutory period.

This Court has consistently required evidence of adverse possession. The burden of presenting this evidence is on the party claiming possession in opposition to legal title.

In an adverse possession case, the burden of proof rests upon the party who asserts it, Ratcliff v. Giorlando, 343 So.2d 506, Ala.Sup. (1977), to prove that the possession is actual, hostile, open, notorious, exclusive and continuous for the statutory period. Smith v. Claybrook, 349 So.2d 1087, Ala.Sup. (1977). This is a heavy burden requiring substantial evidence. Every presumption is in favor of the holder of the legal title. Prestwood v. Hunt, 285 Ala. 525, 234 So.2d 545 (1970); there is no presumption against the holder of the legal title. Jones v. Mitchell, 258 Ala. 651, 64 So.2d 816 (1953).

Casey v. McIntosh, 361 So.2d 1040, 1042 (Ala.1978) (emphasis added).

The appellees cannot rely upon the existence of the fence in aid of this proof of actual possession of the disputed strip east of the fence. The evidence shows that the fence was not built by appellees or their predecessors in title nor has it been maintained by them.

The evidence presented by appellees to prove their acts of possession on the disputed strip are, I believe, insufficient. Appel-lees and appellants both state that the strip for the most part is wooded, unimproved property. Appellees state that they or their predecessors occasionally cut trees; walked on the strip; enjoyed the beauties of nature on the strip; fed squirrels and birds on the strip; cleared areas of underbrush without destroying the nature setting; and occasionally hunted and picnicked on the strip. In addition, there was also testimony that members of the general public occasionally came onto the land in question and used the land in many of the same ways as appellees. Appellant, on the other hand, showed that his employees maintained the fence and that his children hunted and walked on the disputed strip. Therefore, the only conclusive evidence presented, in this case, is that the fence exists and both parties or their predecessors made use of the strip of land in question. I believe that the majority affirms a decision by the trial court which misapplies the law in light of the facts in this case. Just because a landowner does not erect his fence all the way to the section line does not necessarily mean that he recognizes the fence line as his boundary giving his neighbor the right to simply sit back and wait for ten years to pass so that he can make a claim of adverse possession. To obtain title by adverse possession the elements of adverse possession, including actual and exclusive possession, must be proven by the claimant.

I do not feel claimants in this case have proven actual and exclusive possession. The facts show that both parties made use of the strip and both parties were aware of the other’s use. This is not exclusive possession. “In reviewing a decree, this court has held that where the court below had opportunity to hear the witnesses, the decree is entitled to a presumption in its favor on appeal .... However, if it is ‘clearly contrary to the great weight of the evidence,’ this court will reverse on appeal.” Turnham v. Potter, 289 Ala. 685, 690, 271 So.2d 246 (1972).

I believe the only correct decision in this case, based on the evidence, is to grant appellees the eighteen-foot maximum use of the road and to confirm appellant’s ownership of all the land up to the section line. Accordingly, I would affirm in part and reverse in part.

ALMON, SHORES and ADAMS, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    FIRST BAPTIST CHURCH OF CITRONELLE, et al. v. CITRONELLE-MOBILE GATHERING, INC. and Sanders MASON, Jr., et al. v. Bart B. CHAMBERLAIN, Jr., et al.
    Nos. 79-922, 79-923.
    Supreme Court of Alabama.
    Sept. 29, 1981.
    Rehearing Denied Feb. 12, 1982.
    Frank McRight and Donald J. Stewart of McRight, Sims, Rowe & Stewart, Mobile, for appellants in No. 79-922.
    Larry T. Menefee of Blacksher, Menefee & Stein, Mobile, for appellants in No. 79-923.
    G. Sage Lyons and J. P. Courtney, III of Lyons, Pipes & Cook, Mobile, for appellees.
   FAULKNER, Justice.

Plaintiffs are the representatives of a class of persons who were royalty owners of oil and gas interests in the Citronelle Oil Field in Mobile County, Alabama, in December, 1973. The defendants, Citronelle-Mobile Gathering, Inc. (Gathering) and Bart Chamberlain, Jr., Gathering’s president, own and operate a system of gathering lines in the Citronelle Unit. The gathering lines permit the corporation to receive, transport and sell oil which is subject to the royalty interests of the plaintiffs. The class members were parties to an “open price division order contract” with Gathering. Under such a contract, Gathering has the right to purchase oil at the “posted price on the day thereof, for oil of the same kind and quality produced from the same field,” subject only to the plaintiffs’ royalty interests.

By federal regulation, oil sales to domestic purchasers were limited to a price of $5.10 per barrel from December, 1973 through May, 1974. The defendant entered into a series of oil sales contracts with a Bahamian corporation for the export sale of 1,000,000 barrels of oil from the Citronelle Field at a price of $14.00 per barrel. But the defendant paid royalties to the plaintiffs on the price of $5.10 per barrel. Plaintiffs contend that Gathering breached its contract with them by failing to pay royalties on the higher price.

In an action brought in federal court, Judge Virgil Pittman determined that the oil sales in question were not for “export” within the context of the price deregula-tions on oil, and therefore the sales were not exempt from the federal pricing regulations limiting the price of domestic oil sold for $5.10 a barrel. The Court ordered the excess profits, $8,000,000, to be paid into the United States Treasury as restitution.

On July 7, 1975, purported members of the class of persons holding royalty interests in the Citronelle Field brought a class action for fraud and breach of contract in a case styled Helveston, et al. v. Gathering, Chamberlain, et al. The trial court denied class action status two years and four months later, on November 9, 1977. In April of 1978, the former class representatives reached a settlement agreement with Gathering and the case was dismissed. The putative class members were never sent notice of the settlement or dismissal.

On October 24, 1978, less than six months later, the plaintiff filed the present class-action suits on behalf of the putative members of the Helveston class, one against Gathering and one against Chamberlain. The action against Gathering is for breach of contract, while the action against Chamberlain is for fraud. The lower court granted Gathering’s motion for a summary judgment on the grounds that the statutes of limitations bar bringing the causes of action.

The representatives of the class of owners of royalty interests in the Citronelle Field appeal the granting of the summary judgment in favor of Gathering. We reverse the decision of the trial court.

The sole issue on appeal is whether the applicable statute of limitations bars filing of a separate class action after denial of class certification and dismissal in the original action. We hold that when the interests of putative class members may not be adequately protected by the class representative or by the judiciary, the statute of limitations is tolled from the date of commencement of the action until the date of denial of class certification. In the appropriate circumstances, an action may be brought by a putative class member after the denial of class certification and dismissal of an action.

Rule 23 of the Alabama Rules of Civil Procedure is identical to Rule 23 of the Federal Rules of Civil Procedure. Thus, federal authorities are persuasive when interpreting the Alabama Rule, but they are not binding on this Court. Thomas v. Liberty National Life Insurance Co., 368 So.2d 254 (Ala.1979).

The Supreme Court of the United States employs a balancing approach when determining whether a statute of limitations is tolled by the filing of a class action. See United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977); American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). The Court considers the policies underlying class actions and statutes of limitations to discover if tolling the statute of limitations is consistent with those policies.

The class action developed partially in response to problems with the practice in equity regarding “spurious” class actions— class actions in which there are common questions of law or fact. See American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). Potential members of a spurious class action could choose not to intervene in an action if a favorable determination appeared to be unlikely. The class members were not bound unless they intervened in the action. The class action under Rule 23 permits the binding of all class members if the procedures of the rule are complied with. The class action procedure serves “not only the convenience of the parties but also prompt, efficient judicial administration.” (Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 185, 94 S.Ct. 2140, 2156, 40 L.Ed.2d 732 (1974)) (Douglas, J., dissenting) (quoting Z. Chaffee, Some Problems of Equity 149 (1950)). The aggregation of individual claims into one action prevents the waste of judicial resources that result necessary filing of repetitious suits, motions, and papers in individual actions. Moreover, the class action provides a framework within which to seek redress for claims that it may be unfeasible economically to bring in individual actions. See Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980).

The Supreme Court of the United States has determined that tolling of a statute of limitations to permit putative class members to intervene after the denial of class certification is consistent with federal class action procedure. See United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 246, 53 L.Ed.2d 423 (1977) (putative class members may intervene on appeal to contest denial of class certification); American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) (putative class members permitted to intervene after denial of class certification). We hold that tolling of the statute of limitations for actions brought after the dismissal of the original class action in the present case enhances the policies underlying the class action.

The principal function of the class action — to avoid multiplicity in filing suits, motions and papers — will be defeated if the statute of limitations is not tolled in favor of the plaintiffs. A putative class member could protect his or her interests only by filing an individual action or intervening before the statute of limitations runs. See American Pipe & Construction Co. v. Utah, 414 U.S. at 551-555, 94 S.Ct. at 765-767. Filing of individual actions in such a case as the case before the Court is precisely what Rule 23 was designed to avoid. Id. at 551, 94 S.Ct. at 765. The named plaintiffs list over eighty persons who are members of the class of owners of royalty interests in the Citronelle Field. The cause of action arose from the same set of facts, and the same law will apply. The most efficient method of adjudication is the class action, not eighty individual suits, which would bring needless duplication of paperwork.

Class actions also serve the purpose of rendering a final judgment that is binding on all class members, if their interests are sufficiently protected. See American Pipe & Construction Co. v. Utah, 414 U.S. at 548, 549, 94 S.Ct. at 763, 764; Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940). The rights of, and the duties owed to, putative class members are difficult to precisely delineate. See Deposit Guaranty National Life v. Roper, 445 U.S. 326, 343, n.3, 100 S.Ct. 1166, 1176 n.3, 63 L.Ed.2d 427 (1980) (Stevens, J., concurring). It is clear that both the class representative and the court have some responsibility to protect the interests of absent class members prior to approval of a settlement agreement and dismissal of the action. Id. at 332, n.5, 100 S.Ct. at 1171 n.5 (1980); Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940). Some measure of protection must be afforded the interests of the putative class members, even when class action status is denied.

In the present action, the absent class members’ interests could not be adequately protected unless the statute of limitations is tolled. To hold to the contrary would have the effect of shortening the statute of limitations. In the present case, the class members waited two years of the four year limitation period for the lower court to certify the class. Three months later, the named plaintiffs settled. If this court were to hold that the statute of limitations is not tolled the class members have an effective statute of limitations of a little over two years, instead of four years. “This would only serve to ‘convert the rule into a trap’ for those who have expeditiously allowed their rights to be maintained by a class action.” Hellerstein v. Mathers, 360 F.Supp. 473 (D.D.C.1973) (quoting Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir. 1962).

Tolling the statute of limitations in favor of the plaintiffs is not inconsistent with the function of the statute. Statutes of limitations prevent revival of fraudulent or stale claims and prevent surprise after evidence is lost or obscure. See American Pipe & Construction Co. v. Utah, 414 U.S. at 554, 94 S.Ct. at 766; Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 64 S.Ct. 582, 88 L.Ed. 788 (1943); Seybold v. Magnolia Land Co., 376 So.2d 1083 (Ala.1979).

The policies of ensuring essential fairness to defendants and of barring, a plaintiff who has ‘slept on his rights’ [citations omitted] are satisfied when ... a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment.

American Pipe & Construction Co. v. Utah, 414 U.S. at 554-555, 94 S.Ct. at 766-767.

The defendants, Gathering and Chamberlain, have the “essential information necessary to determine both the subject matter and size of the prospective litigation.” Id. at 555, 94 S.Ct. at 767. The filing of the complaint in the Helveston action put the defendants on notice as to the subject matter and size of the litigation. Therefore the imposition of a time bar does not promote the purposes of the statute of limitations.

Our conclusion is that the applicable statutes of limitations, Code 1975, §§ 6-2-3 and 7-2-725, are tolled from the filing of the class action in Helveston, until the denial of class certification, two years and four months later. Since the filing of the present action was less than nine months after the denial of class certification in Helveston, the complaint is timely made and not barred by the statute of limitations.

The order of the trial court granting a summary judgment on the basis that the statute of limitations had run is reversed and the cause is remanded.

REVERSED AND REMANDED.

JONES and BEATTY, JJ., concur.

MADDOX, SHORES and ADAMS, JJ., concur in the result.

TORBERT, C. J., and ALMON and EM-BRY, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

I dissent. In American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the United States Supreme Court set out the standard to be followed by potential class members when class action status is denied and the applicable statute of limitations has run. The Court stated:

We hold that .. . where class action status has been denied solely because of failure to demonstrate that “the class is so numerous that joinder of all its members is impracticable,” the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status. [Emphasis supplied.]

414 U.S. at 552-53, 94 S.Ct. at 765-66.

Here, the plaintiffs are not within the American Pipe & Construction Co. principle of tolling the statute of limitations. The plaintiffs did not timely move to intervene in the pending Helveston case after class action status had been denied. By commencing a separate and independent action, the American Pipe & Construction Co. standard was defied. In Stull v. Bayard, 424 F.Supp. 937 (S.D.N.Y.), aff’d, 561 F.2d 429 (2d Cir. 1977), the district court specifically addressed this issue:

[A] member of a class, on whose behalf a class action has been commenced, may not bring a separate, independent action after his individual claim has been time barred. His sole remedy, under American Pipe, is a timely motion to intervene in the class action after class action status has been denied; only if he does so, is the statute of limitations tolled as to him.

424 F.Supp. at 942.

The holding of the majority in this case fails to consider these prior holdings and, as a result, will not effectuate “litigative efficiency and economy,” as is the purpose of Rule 23, ARCP. This decision, in effect, will allow independent actions by class members on claims already barred by the running of the statute of limitations. Class actions brought under Rule 23, ARCP, are designed to avoid unnecessary filing of repetitious papers and motions, yet this holding will encourage the assertion of stale claims by persons not following the procedures set out by American Pipe & Construction Co.

For the foregoing reasons, I believe that the holdings of American Pipe & Construction Co. v. Utah and Stull v. Bayard should control and that the statute of limitations in this instance was not tolled.

ALMON and EMBRY, JJ., concur.

      . The statute of limitations for actions based on a breach of contract is Code 1975, § 7-2-725, which provides: “An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.”
      The statute of limitations for actions based on fraud is Code 1975, § 6-2-3, which provides: “In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his action.”

      . Rule 23 provides: “As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” ARCP 23(c)(1).


author:
TORBERT, Chief Justice. EMBRY, Justice
      MADDOX, Justice ADAMS, Justice

text:
    Roy DURANT v. Steven O. HAMRICK.
    79-584.
    Supreme Court of Alabama.
    Oct. 2, 1981.
    Rehearing Denied Feb. 12, 1982.

      Norman J. Gale, Jr. of Clay, Massey & Street, Mobile, for appellant.
    George A. Tonsmeire, Jr., Mobile, for ap-pellee.
   TORBERT, Chief Justice.

Plaintiff appeals from an adverse judgment of the Circuit Court of Mobile County, in a civil action filed against defendant, Steven 0. Hamrick, the son of plaintiff’s deceased wife, seeking to cancel and set aside a conveyance of real estate from plaintiff’s wife to defendant. Plaintiff claimed that his wife was not mentally or physically competent and the execution of the deed was the result of undue influence exercised on. her by the defendant, her son.

Plaintiff further claimed to own the property in question (2 parcels) under deeds which conveyed the property to plaintiff and his wife as concurrent owners with certain survivorship provisions which will be discussed more fully in this opinion.

The controlling facts on this appeal are as follows: Over a period of some five years, plaintiff and his wife acquired approximately 31.5 acres of land in four contiguous parcels. Only two parcels are the subject of this appeal. These parcels were acquired in 1968 and 1969 by plaintiff and his wife under deeds of conveyance with identical granting clauses which read as follows:

Grantors do hereby GRANT, BARGAIN, SELL AND CONVEY unto said Grantees ... as tenants in common and with equal rights and interest for the period or term that the said Grantees shall both survive and unto the survivor of the said Grantees, at the death of the other ....

The habendum clause in each of these conveyances reads as follows:

TO HAVE AND TO HOLD the same unto the Grantees in the manner and interest as set forth and stated herein above.

By deed dated December 19, 1977, plaintiff’s wife sought to convey her interest in this property to her son, defendant herein, subject to a life estate reserved in the grantor, plaintiff’s wife. This deed made no reference to the interest in the property then owned by plaintiff’s wife. The trial court held adversely to plaintiff on both theories. As to the December 1977 deed to defendant, the court concluded that plaintiff’s wife had validly conveyed her one-half interest in the property described therein. The basis for the trial court’s decree was reliance on this Court’s decision in Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972).

The issues on this appeal present to this Court an interesting and significant case concerning the property laws of this state. In order to resolve these issues, we deem it necessary to review and discuss, from a historical perspective, the nature and characteristics of the concurrent ownership of property by two or more individuals under property laws involving joint tenancies as distinguished from tenancies in common.

At English common law, joint tenancies rather than tenancies in common were favored. 4 G. Thompson, Commentaries on the Modern Law of Real Property § 1775 (1979); 4A R. Powell, The Law of Real Property § 602 (Rohan ed. 1979). As a matter of law, where a deed conveyed property to two or more persons jointly, the common law presumed that the interest created in the grantees was that of a joint tenancy. II W. Blackstone, Commentaries on The Laws of England 180. In order to create a tenancy in common, it was necessary that the conveyance be specific and affirmatively provide language to confirm the grantor’s intent to create a tenancy in common. 4 G. Thompson, supra, at § 1775; 4A R. Powell, supra, at § 602.

American property law developed to the contrary, favoring tenancies in common and not joint tenancies. The members of the First General Assembly of the Alabama Territory followed this development by enacting a statute in 1818, concerning which the Supreme Court as early as 1852 noted the following:

Qur statute, it is true, has done away with all joint tenancies, as known at the common law, and declares that when two or more persons shall hold an estate, real or personal, jointly, and one joint tenant dies before severance, his interest in the joint estate shall not survive to the remaining joint tenant or joint tenants, but shall descend to, and be vested in, his heirs or other legal representatives, in the same manner as if his interest had been severed and ascertained; Clay’s Digest 169.... The evil that our statute intended to remedy was, to cut off the jus accreseendi, or right of survivorship, which existed at the common law, and to give to the heirs at law of joint tenants the interest of their ancestors, in the same manner as if they had held as tenants in common, and not as joint tenants. It was thought unreasonable that the death of one joint tenant should give the entire estate to the survivor for his own use, to the exclusion of the heirs or next of kin of the deceased tenant.

Parsons v. Boyd, 20 Ala. 112, 118 (1852).

This statute was carried forward in successive Codes and was codified in the 1940 Code of Alabama in the following language:

When one joint tenant dies before the severance, his interest does not survive to the other joint tenants, but descends and vests as if his interest had been severed and ascertained.

Code 1940, Tit. 47, § 19.

Having abolished joint tenancies at common law, the above statute was amended in 1945 by the addition of the following language:

[Pjrovided, however, that in the event it is stated in the instrument creating such tenancy, that such tenancy is with right of survivorship, or other words used therein showing such intention; then upon the death of one joint tenant, his interest shall pass to the surviving joint tenant or tenants according to the intent of such instrument.

Code 1940, Tit. 47 § 19 (Recompiled 1958); See 1945 Ala. Acts No. 505 at 730. „

This development of the statutory law in our state was discussed in the case of Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965). In that case, a husband filed a partition suit for sale and division of property which had been conveyed to the husband and wife “as joint tenants with right of survivorship, [and to] their heirs and assigns forever”; that deed contained the following provision: “[I]t being the intention of the parties to this conveyance, that (unless the joint tenancy hereby created is severed or terminated during the joint lives of the grantees herein), in the event one grantee herein survives the other, the entire interest in fee simple shall pass to the surviving grantee. . . . ” In that case, this Court gave effect to the intention of the parties as determined from the language in the deed “consistent with the intentions of the legislature as expressed in the above quoted statute.” Bernhard, 278 Ala. at 243, 177 So.2d 565.

In Bernhard, the court held:

[T]he parties here involved intended to create and did create a tenancy in common during the joint lives of the tenants with right of survivorship in the survivor. They carefully said that if neither survived the other, then in that event their property was to descend as if held by them as tenants in common. Such we think is consistent with the intentions of the legislature as expressed in the above quoted statute. Survivorship is allowed, if expressed, as an incident to the estate of tenancy in common. Each does not own the whole, while at the same time owning the half. Rather, each owns an undivided one-half interest in the property for life, plus the right to own the unencumbered whole if he survives his co-tenant.

Bernhard, 278 Ala. at 243, 177 So.2d 565.

Partition by sale and division was not allowed because the property interests created were indestructible by the acts of one owner.

Bernhard remained the law in Alabama until the decision in Nunn v. Keith. The conveyance in Nunn involved a habendum clause virtually identical to the one in Bernhard. Nunn expressly overruled Bernhard. Nunn, 289 Ala. at 523, 268 So.2d 792. Bernhard having been overruled, it is now instructive to consider this Court’s latest pronouncement with respect to this type of conveyance. First, in discussing the holding in the Bernhard case, Justice Sommerville, writing for the Court, stated:

[T]he court [in Bernhard] found that the parties intended to and did create a tenancy in common during their joint lives with right of survivorship which was indestructible except with the consent of every tenant. To arrive at this conclusion, as to indestructibility, the court had equated a tenancy in common, with right of survivorship, to a tenancy in common for the joint lives of the tenants with cross-contingent remainders in both tenants, an estate recognized in some other jurisdictions.... Stated concisely, the rule established by Bernhard is that where two or more persons own property concurrently, with right of survivorship, regardless of what language is used in the instrument creating the estate, they are, by virtue of § 19, Title 47 [Code 1975, § 35-4-7], tenants in common with right of survivorship and such ownership cannot be terminated except upon the deaths of all but the last survivor, or upon partition or sale with the consent of every cotenant.

Nunn, 289 Ala. at 522, 268 So.2d 792.

In Nunn, the court was faced with the situation in which two concurrent owners held property under an instrument which stated that they were joint tenants with right of survivorship and one of these two concurrent owners conveyed his interest to himself and another. The Court in Nunn specifically held contrary to Bernhard with respect to the nature of the property interests created, although the language in the Nunn deed was virtually identical to that used in the Bernhard conveyance:

[T]he Legislature amended the statute (Title 47, § 19) to make it possible to convey in joint tenancy, with right of survivorship, simply by expressly stating such intention in the instrument of conveyance. The statute as amended refers to joint tenants, not tenants in common. There is nothing in the amended statute to suggest that the Legislature had any intention but to revive common law joint tenancy with the single requirement that the parties must clearly express an intention to have the right of survivorship in the instrument.

Nunn, 289 Ala. at 523, 268 So.2d 792 (emphasis added).

The Court, in Nunn, found support for the above statement by referring to a 1951 amendment to Section 19 which eliminated one of the requirements found in joint tenancies, that is, the unity of time.

The court in Nunn summarized its holding as follows:

We must conclude that the Legislature intended to and did revive common law joint tenancies in Alabama through the 1945 amendment, but simply wished to require the parties to clearly express their intentions as to survivorship. As indicated above, the 1951 amendment merely served to remove the common law requirement of unity of time in creating such estates. In summary, we hold that § 19, as now amended, recognizes joint tenancy, with right of survivorship, as a valid estate in realty or personalty, and that it differs from the common law estate of the same name only [insofar] as (1) the statutory requirement that the intention to have the right of survivor-ship must be clearly expressed in the instrument of conveyance, and (2) elimination of the common law unity of time. We further hold that such estate is destructible as at common law.
Having determined that it is indeed possible to establish joint tenancies in Alabama, with all of the incidents and attributes that existed at the common law (except as expressly modified by § 19), we can now resolve the questions presented by the instant case. The 1949 deed conveying the subject real- property . . . created a joint tenancy, with right of survivorship, as clearly expressed on the face of the instrument.

Nunn, 289 Ala. at 523-24, 268 So.2d 792.

The conveyance by one joint tenant to a third party destroys the joint tenancy and a tenancy in common among the new owners is created by operation of law. Nunn, 289 Ala. at 524, 268 So.2d 792.

Turning now to the consideration of the deeds of conveyance in the present case, it is necessary to determine the nature of the property interests created by the language contained in both the 1968 and 1969 deeds to the plaintiff and his wife, to-wit: “GRANT, BARGAIN, SELL AND CONVEY unto the said Grantees ... as tenants in common and with equal rights and interests for the period or term that the said Grantees shall both survive and unto the survivor of the said Grantees, at the death of the other .. . . ” If the 1968 and 1969 deeds created and vested in plaintiff and his wife the same property interests as were created in the deed construed in Nunn v. Keith (a common law joint tenancy, modified by Alabama statute), then the 1977 conveyance from plaintiff’s wife to her son destroyed the joint tenancy and plaintiff and defendant became owners as tenants in common. Then, of course, the trial court would be correct, and Nunn v. Keith would be dispositive of this issue. Our view is to the contrary, as we recognize certain basic differences between joint tenancies (sometimes referred to as joint tenancies with right of survivorship) and tenancies in common:

In a joint tenancy at common law each tenant was seized of some fractional share while at the same time each owned the whole. The most significant feature of such a tenancy was the right of surviv-orship. When one joint tenant died, the deceased’s share was owned by the surviving tenants jointly, until only one remained, who then owned the fee. The last survivor took nothing by survivorship as he had always owned the whole. The deaths of the other joint tenants merely removed impediments to the survivor’s complete ownership. At common law, a joint tenancy could be created only where the four unities of time, title, interest, and possession were present and the destruction of any of these would terminate the joint tenancy. Thus, a conveyance by a joint tenant of his interest in the property would destroy the joint tenancy.

Nunn, 289 Ala. at 520-21, 268 So.2d 792.

While Bernhard held that the provisions of a deed conveying property to grantees “as joint tenants with right of survivorship” created a tenancy in common during the joint lives with right of survivorship which was indestructible, Nunn expressly overruled Bernhard by holding the deed created a joint tenancy with right of survivorship as authorized by statute (Code 1940, Tit. 47 § 19, now Code 1975, § 35-4-7). Thus, this latest pronouncement clearly recognizes the difference in Alabama between joint tenancies with right of survivorship and tenancies in common.

What, then, are the nature and characteristics of the property interests created in the 1968 and 1969 deeds? The language clearly conveys to grantees “as tenants in common.” Alabama law favors tenancies in common over joint tenancies; therefore, we hold that the grantees took title as tenants in common, and not as joint tenants.

Joint tenancy was the product of feudalism, and that character of tenure was favored, because it tended to combine or unite the feudal service, and to consolidate the tenure, and to strengthen the military service growing out of that tenure. With the passing of the feudal system, joint tenancy came to be regarded with as little favor in England as in this country. In England, as in America, courts of law and equity will construe expressions in a conveyance as importing a condition in favor of a tenancy in common, rather than a joint tenancy, and effect will be given accordingly.

In re Hutchison’s Estate, 120 Ohio St. 542, 166 N.E. 687, 690 (1929).

The case at hand, however, presents the further and decisive question of whether Alabama property law recognizes a form of concurrent ownership of property by individuals as tenants in common with provisions for the equal rights and interests during the lives of the owners with the fee to vest in the survivor. If so, we must decide the nature and characteristics of this form of concurrent ownership.

Again, considering English common law, it has been recognized that a right of sur-vivorship could be attached to a tenancy in common:

The fair construction is to treat it as a devise to the sisters as tenants in common with benefit of survivorship, and thereby give effect to all the words. A tenancy in common with benefit of survivorship is a case which may exist, without being a [joint tenancy]; because survivorship is not the only characteristic of a [joint tenancy].

Doe v. Abey, 1 Maule & Seiwyn’s Rep. 428, 105 Eng.Rep. 160, 163 (K.B.1813).

We are persuaded that Alabama should likewise recognize a form of concurrent property ownership as tenants in common which provides for survivorship. This form of concurrent ownership can be characterized as creating concurrent life estates with cross-contingent remainders in fee; or a tenancy in common for life with a contingent remainder in favor of the survivor. See, 1 Tiffany, Real Property 635 (2d ed.).

Other states, having abolished or restricted the use of joint tenancies, have recognized tenancies in common with right of survivorship. The Supreme Court of Minnesota, in Papke v. Pearson, 203 Minn. 130, 280 N.W. 183, 185 (1938), held that estates may be held by tenants in common with the benefit of survivorship. The Supreme Court of Nebraska, considering a deed conveying title “as joint tenants and not as tenants in common” with survivorship, held the conveyance failed to create joint tenancy, lacking unity of time and title, but created a tenancy in common with survivorship. Anson v. Murphy, 149 Neb. 716, 32 N.W.2d 271 (1948). In Mitchell v. Frederick, 166 Md. 42, 170 A. 733, 735-36 (1934), it was held: “Even a tenancy in common may have a right of survivorship attached to it if the grantor expresses an intention that it shall be so.” In construing a deed conveying property to two persons “and the survivor of them, in her or his own right,” the Supreme Court of Illinois held that the sur-vivorship provision in the deed was placed in the deed for a purpose and could not be arbitrarily rejected, Mittel v. Karl, 133 Ill. 65, 24 N.E. 553 (1890), in effect holding that the deed in question conveyed to the grantees for life with a contingent remainder in fee to the survivor.

A tenancy in common for life with contingent remainder in fee in the survivor differs from a joint tenancy in that the right of survivorship in one tenant in common is not destructible by the act of the other. 4A R. Powell, supra, § 616 at 669; 4 G. Thompson, supra, § 1775.

It has been sometimes objected that this interpretation of the word “surviv- or,” cannot be adopted where there is a gift to several persons as tenants in common, not as joint tenants. But there is obviously a very great distinction between the limitation of survivorship that is involved in a gift of joint tenancy, and the limitation of the word “survivor” which is annexed to a tenancy in common. The survivorship involved in an estate in joint tenancy is that which is capable of being defeated at the pleasure of the joint tenant, so that if, by alienation or otherwise, the joint tenancy is converted into a tenancy in common, the survivorship ceases; but when a gift to the “survivor” is annexed to a tenancy in common and not to a joint tenancy, then the limitation takes effect by virtue of the gift, and not by virtue of something involved in a limitation of joint tenancy.

Taaffe v. Conmee, 11 Eng.Rep. 949, 954-55 (H.L.1862).

The power to defeat the survivorship interest does not extend to cotenants who hold concurrent life estates with contingent remainders. The contingent remainder held by a cotenant cannot be defeated by the other. Halleck v. Halleck, 216 Or. 23, 41, 337 P.2d 330, 338 (1959). See also, Papke v. Pearson, 280 N.W. at 185. In Hass v. Hass, 248 Wis. 212, 22 N.W.2d 151 (1946), the Supreme Court of Wisconsin recognized “survivorship” provisions in three classes of cases: (1) those involving a joint tenancy (survivorship being dependent upon the nature of the tenancy); (2) estates by the entirety (now abolished); and (3) those where a surviving tenant in common by virtue of the express terms of the instrument takes the remainder. “Perhaps it would be more accurate to say that such an instrument creates an indestructible remainder rather than a type of survivorship.” Hass v. Hass, 22 N.W.2d at 151. “A survivorship attached to a tenancy in common is indestructible except by the voluntary action of all the tenants in common to so do.” Anson v. Murphy, 32 N.W.2d at 273.

Since this Court’s decision in Nunn v. Keith, commentators have discussed the question as to the effect of that decision on conveyances which, at common law, created a tenancy in common for life with cross-contingent remainders. 4 Cum.L.Rev. 190 (1973); and 25 Ala.L.Rev. 851 (1973). One commentator concluded that Nunn v. Keith settled one of the most confused areas of Alabama property law, and that the concepts of concurrent ownership existing only by tenancy in common and of survivorship existing in the form of contingent remainders were abolished. 4 Cum.L.Rev. at 198. This issue was somewhat more accurately expressed by another commentator who stated that “the courts will often find themselves faced with instruments either drafted specifically to produce a Bernhard-type estate [tenancy in common for life with right of survivorship] or drafted ambiguously, and the courts will be forced to decide whether Nunn causes all survivorship instruments to create joint tenancies or merely permits the joint tenancy estate in addition to the Bernhard -type estate.” 25 Ala.L.Rev. at 870. While it is certainly a principal responsibility of courts of last resort to see that their decisions possess permanence and stability of character, Bryant v. J. & T. Simpson, 3 Stew. 339 (Ala.1831) (Collier, J., dissenting), we are compelled to consider and apply well known principles of property law rather than to hold in simplistic fashion that common law joint tenancies as modified by statute are the same as tenancies in common for life with cross-contingent remainders to the survivor in fee.

Additionally, we have considered public policy arguments against “survivorship” provisions in conveyances of property. One might construe the 1818 Alabama territorial statute as such a declaration. However, the Alabama legislature subsequently authorized survivorship in joint tenancies by amending the 1818 Act in 1945. See, 1945 Alabama Act No. 505. See also, Nunn v. Keith, 289 Ala. at 521-24, 268 So.2d 792. “[T]he grant of an estate for life, and a contingent remainder in fee to' the survivor, violates no rule of the common law . . . and we perceive no reason why it should not be sustained . . . . ” Mittel v. Karl, 24 N.E. at 555.

Nor is it improbable or unreasonable to suppose an intention of an owner of property to keep the property together for the benefit of the ultimate survivor, instead of allowing it to stand subject to partition and dissipation by any one of several possible events occurring during a joint tenancy. Vick v. Edwards, 3 P.Wms. 372, 24 Eng. Rep. 1107 (1735).

We hold that the 1968 and 1969 deeds in issue on this appeal did, as a matter of well established property law, create in the original grantees therein a form of concurrent ownership in property as tenants in common during the respective lives of the grantees with cross-contingent remainders in fee tó the survivor. Accordingly, because such interests are indestructible by the act of' one cotenant, the defendant, under the facts in this case, has no interest in the two parcels of real estate which are the subject of this appeal.

Our decision in this case should not be construed as overruling Nunn v. Keith. On the contrary, Nunn dealt with a conveyance to “joint tenants,” not tenants in common. Nunn construed our statute relating to joint tenancy, not tenancy in common. The statute itself speaks in terms of joint tenants, not tenants in common. As to public policy considerations respecting “survivor-ship” provisions, it is clearly a legislative prerogative to enact an appropriate statute declaring any form of “survivorship” in property void whether in the form of joint tenancy or tenancy in common for life with cross-contingent remainders to the survivor in fee. In this case we simply recognize another form of concurrent ownership of property with provisions for survivorship— as tenants in common for life with cross-contingent remainders to the survivor in fee, indestructible as at common law.

REVERSED AND REMANDED.

ALMON, SHORES and BEATTY, JJ., concur.

EMBRY, J., concurs specially.

MADDOX, FAULKNER, JONES and ADAMS, JJ., dissent.

EMBRY, Justice

(concurring specially):

I concur with the scholarly dissertation regarding estates in real property created by deeds of conveyance. However, I would add my view to the effect that Nunn v. Keith, when overruling Bernhard, by no means laid to rest the many variations of estates that may be created within the framework of what is denominated joint tenancy with right of survivorship, tenancy in common, etc.

Resorting to the general rules of construction of written instruments to the effect that the bottom line is always the intention of the parties, with particular emphasis on the words expressing that intent, I would permit any manner of estate in real property to be created by clearly expressed intention of the parties contained in the instrument creating it so long as it was not contrary to law or expressed public policy.

MADDOX, Justice

(dissenting).

In Jackson v. Fillmore, 367 So.2d 948 (Ala.1979), I stated:

I thought Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972), had given Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965), a decent burial; now, the majority resurrects it.

If Jackson resurrected Bernhard, this case has Bernhard alive and well and back among us, not with a new body, but in its original form, because Jackson involved only a question of whether Nunn v. Keith was retroactive; this case involves whether Nunn v. Keith is still viable.

The majority opinion is well done and the learned Chief Justice, citing some rather ancient cases and several treatises on real property, has satisfied himself and the other justices that the estate created by the deed in question was indestructible. In my opinion, there was no need for this historical development because two Alabama cases, Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965), and Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972), squarely address this issue of the destructibility of the estate created by the deed. On this issue of destructibility, Nunn v. Keith is the latest Alabama precedent, and in my opinion, Nunn v. Keith squarely holds that estates such as the one created here are destructible.

Even though the Court states that this decision should not be construed as overruling Nunn v. Keith, I cannot see how it can be otherwise construed.

In the first place, Justices Merrill and Harwood, who joined in Bernhard, also joined the majority in Nunn v. Keith to overrule Bernhard. The late Mr. Justice Bloodworth, in a special concurrence in Nunn v. Keith, probably expressed best why Bernhard was overruled, and I think gave a clue to the broad holding of Nunn v. Keith when instruments containing words of survivorship are being construed. He opined:

I concur in the opinion of the majority written by Mr. Justice Somerville. Since I authored for the court Killingsworth v. Killingsworth and Willis v. James, both referred to in the dissenting opinion of Mr. Justice Coleman, I feel constrained to add these additional comments of my own.
That there have been difficulties encountered by this Court in applying Bern-hard, is reflected in the seven subsequent decisions listed in Justice Coleman’s dissent.
These decisions which followed Bern-hard, were authored by Justices Merrill, Coleman, Harwood, Maddox, McCall and myself, and were concurred in by a majority of the Court, without a dissent expressed as to the holding of Bernhard.
My first impression was that Bernhard ought to be left undisturbed, in view of the passage of seven years since it was rendered and its having been followed in subsequent decisions. Upon mature consideration, however, I am convinced that its demise is timely. For one thing, Bern-hard has raised more problems than it has settled. I believe this decision will put to rest its more perplexing problems and give certainty and a settled construction to future survivorship deeds.
In one respect, I differ with the majority. In order to obviate one of the criticisms which Judge Coleman levies, that real estate purchases have been made in reliance on Bernhard, I would give this decision prospective effect only.

That Nunn v. Keith was intended to apply to “an instrument creating any type of concurrent ownership with right of surviv-orship” is apparent from the language of the opinion. Mr. Justice Somerville, writing for the majority, stated:

The Bernhard opinion was destined to cause serious problems for parties holding title to property under an instrument creating any type of concurrent ownership with right of survivorship. [Emphasis added.]

Mr. Justice Bloodworth, in his special concurrence, stated that Bernhard “has raised more problems than it has settled,” and suggested that Nunn v. Keith would “put to rest its more perplexing problems. . . . ”

The “perplexing problems” to which Mr. Justice Bloodworth referred obviously involved the holding in Bernhard that the estate therein involved was indestructible because all the cases coming to this Court after Bernhard was decided involved the question whether the estate created by the instrument involved was destructible.

Mr. Justice Coleman, in his dissent in Nunn v. Keith, listed several of the cases which had come to this Court, which involved problems similar to that resolved in Bernhard. Nunn v. Keith, 289 Ala. at p. 527, 268 So.2d 792. Those cases were: Owens v. Owens, 281 Ala. 239, 243, 201 So.2d 396; Brown v. Andrews, 281 Ala. 598, 601, 206 So.2d 607; Fretwell v. Fretwell, 283 Ala. 424, 425, 218 So.2d 138; Killingsworth v. Killingsworth, 284 Ala. 524, 528, 226 So.2d 308; Summerlin v. Bowden, 286 Ala. 391, 392, 240 So.2d 356; Shrout v. Seale, 287 Ala. 215, 217, 221, 250 So.2d 592; and Willis v. James, 287 Ala. 653, 254 So.2d 717. In each of those cases, the instrument used words of survivorship in grants to two or more persons, and the question of the destructibility of the estate thereby created was squarely presented in each of the cases.

Because I was so confident that Nunn v. Keith finally settled the question of the destructibility of such estates, I not only concurred in its holding, but dissented in Jackson v. Fillmore, supra, because I thought the holding in Nunn v. Keith should be made retroactive. In short, I thought Nunn v. Keith stated the law of this state as it had been since the state was a territory. I do not disagree with the Chief Justice that a person can convey property to grantees “as tenants in common for life with cross-contingent remainders to the survivor in fee”; I do not disagree with Mr. Justice Embry in his special concurrence that parties should be able to create any estate they choose, provided it is clearly expressed in the instrument; however, I strongly disagree that persons can use words of survivorship in a grant to two or more persons and thereby create an estate which is indestructible. I do not think that Nunn v. Keith expressly forbids the creation of cross-contingent remainders among co-owners, but I am firm in my belief that Nunn v. Keith does hold that such estates are destructible. In fact, I think that the express holding of Nunn v. Keith, and if not the express holding, then the implied holding, is that the legislature has already said that such estates are destructible. That this was the holding of Nunn is evidenced by a reading of Mr. Justice Coleman’s dissent in Nunn v. Keith, wherein he stated:

I do not agree that the legislature intended to forbid the conveyance or devise of land to two or more persons during their joint lives with the entire fee to pass to the last survivor on the death of the other grantees. Such a conveyance creates an estate different from a common law joint tenancy.

Many of the cases which have involved the problem presented in this case came to this Court while I was a member of the Court and I authored the opinion in Summerlin v. Bowden, supra, and I dissented in Brown v. Andrews, supra. I had always questioned the holding in Bernhard with regard to the “destructibility issue.” That is the reason why I thought that the opinion in Nunn v. Keith stated the law of Alabama as it had been since Alabama was a territory. In my opinion, the holding of Nunn v. Keith could be succinctly stated as follows:

Any instrument which creates any type of concurrent ownership with right of survivorship is permissible, provided it is stated in the instrument creating the tenancy, that the tenancy is with right of survivorship, but any estate so created, is destructible.

Nunn v. Keith was intended to be the final word in “one of the most confused areas of Alabama law.” The decision today unfortunately revives all of the “problems” inherent in instruments which use words of survivorship in grants or devises to two or more persons. Some of these questions are as follows: What estate did the parties intend to create — a joint tenancy or a tenancy in common with cross-contingent remainders? Are the estates destructible? Can one joint tenant or tenant in common force partition or sale on his co-owner? Can creditors reach the interest of a co-owner? Can one joint tenant or tenant in common transfer his interest, and what effect does that transfer have on the nature of the instrument or interest of the co-owner? Because I think Nunn v. Keith answered all of these questions, and settled the law in this area involving instruments which use words of survivorship in grants to two or more persons, and because I think the Court fails to follow the holding of Nunn v. Keith in this case, I must respectfully dissent.

JONES, J., concurs.

ADAMS, Justice

(dissenting).

I am compelled to agree with the position taken by my brother Maddox, in his dissent in this case. I do so for several reasons. First, I considered the granting clause in the instant case and compared it with the granting clause in Bernhard, as well as the interpretation placed thereon by the Bernard court, and the granting clause in Nunn. In the instant case the granting clause reads as follows:

GRANTORS do hereby GRANT, BARGAIN, SELL and CONVEY unto said Grantees ... as tenants in common and with equal rights and interest for the period or term that the said Grantees shall both survive and unto the survivor of the said Grantees, at the death of the other . . . [Emphasis added.]

In Bernhard, the deed in question contained the following clauses.

To have and to hold unto the said Charles B. Bernhard, Jr. and Joanna T. Bernhard, his wife, as joint tenants with right of survivorship, their heirs and assigns forever; it being the intention of the parties to this conveyance, that (unless the joint tenancy hereby created is severed or terminated during the joint lives of the grantees herein), in the event one grantee herein survives the other, the entire interest in fee simple shall pass to the surviving grantee, and if one grantee does not survive the other, then the heirs and assigns of the grantees herein shall take as tenants in common.

Bernhard, 278 Ala. at 241-2, 177 So.2d 565.

The Court in Bernhard, said that this language created an indestructible estate. It said:

What estate was created? It is our opinion that the parties here involved intended to create and did create a tenancy in common during the joint lives of the tenants with right of survivorship in the survivor. They carefully said that if neither survived the other, then in that event their property was to descend as if held by them as tenants in common. Such we think is consistent with the intentions of the legislature as expressed in the above quoted statute. Survivorship is allowed, if expressed, as an incident to the estate of tenancy in common. Each does not own the whole, while at the same time owning the half. Rather, each owns an undivided one-half interest in the property for life, plus the right to own the unencumbered whole if he survives his co-tenant.

Bernhard, at 243, 177 So.2d 565.

In Nunn v. Keith, the granting clause is identical to the granting clause in Bern-hard, except for the names of the grantees. That clause is as follows:

To have and to hold unto the said Ed Nunn and Katie L. Nunn and Calvin C. Keith, as joint tenants, with right of sur-vivorship, their heirs and assigns forever; it being the intention of the parties to this conveyance, that (unless the joint tenancy hereby created is severed or terminated during the joint lives of the Grantees herein), in the event one Grantee herein survives the other, the entire interest in fee simple shall pass to the surviving Grantee, and if one Grantee does not survive the other, then the heirs and assigns of the Grantees herein shall take as tenants in common.

Nunn, 289 Ala. at 520, 268 So.2d 792.

Justice Somerville, speaking for the court, expressly overruled the holding in Bernhard that such a granting clause created an indestructible estate. Did the court in Nunn also hold that whatever the interest created, joint tenancy with right of sur-vivorship or tenancy in common with cross contingent remainders, that such estates also were destructible? If the court did so, the majority is wrong and the circuit court is due to be affirmed. Justice Maddox, the only member of our court who was on the Nunn court, believes that it did. I must agree with him.

The majority theorizes that the Nunn decision did not reach the tenancy in common problem, but can be read as holding that the Bernhard court made a mistake in interpreting the language contained in the habendum clause to create a tenancy in common with cross contingent remainders, because the language in that deed merely created a joint tenancy with joint right of survivorship which was destructible at common law.

I cannot agree with this position because to say “joint tenancy with right of survivor-ship” is redundant. One of the unique features of the joint tenancy at common law was its survivorship characteristic. “Tenants [are] seised of the entire estate for the purposes of tenure and survivorship but only of an undivided part or interest for the purpose of forfeiture or immediate alienation.” 20 Am.Jur.2d Cotenancy and Joint Ownership § 7, at 98 (1965) (footnote omitted). There was no need for a cross contingent remainder because at the death of one joint tenant, the impediment to the title of those that remained was removed with complete title vesting in the last survivor. However, the conveyance of one tenant severed the estate and what was left was a tenancy in common. Bernhard, 278 Ala. at 242, 177 So.2d 565. On the other hand, a tenancy in common had no survivorship characteristic and if the grantees desired such an estate it could be accomplished only by attaching cross contingent remainders to the original common law estate. Therefore, it appears reasonable to me that the Nunn court did not undertake to reject the Bern-hard court’s interpretation of the import of the granting clause in that case, but merely held that whatever estate was created was destructible.

My conclusion as to the meaning of Nunn is further strengthened by a sentence in that case: “Thus, Bernhard in creating an indestructible right of survivorship appears to result in something worse than the evil § 19 originally sought to prevent.” Nunn, 289 Ala. at 522, 268 So.2d 792.

In 1852, this court said in Parsons v. Boyd, 20 Ala. 112, at 118:

The evil that our-statute intended to remedy was, to cut off the jus accrescendi, or right of survivorship, which existed at the common law, and to give to the heirs at law of joint tenants the interest of their ancestors, in the same manner as if they had held as tenants in common, and not as joint tenants. It was thought unreasonable that the death of one joint tenant should give the entire estate to the survivor for his own use, to the exclusion of the heirs or next of kin of the deceased tenant.

The evil that was spoken of that was worse than § 19 was the exceptions that were argued for in the interest of justice. One exception had to be made in the case of married couples who could not agree on disposition of their property in the event of marital discord. Our court allowed the estate to be destroyed incident to a divorce proceeding. Owens v. Owens, 281 Ala. 239, 201 So.2d 396 (Ala.1967). Other exceptions were either expressly or impliedly rejected. Summerlin v. Bowden, 286 Ala. 391, 240 So.2d 356 (1970); Shrout v. Seale, 287 Ala. 215, 250 So.2d 592 (1971). By this court’s decision today, we now have joint tenancies with right of survivorship that are destructible and tenancies in common with cross contingent remainders which are not destructible. Are the results any less evil now than they were when Nunn v. Keith was decided?

Many scholars, judges and lawyers thought that this complex issue of destructibility of these estates had been decided once and for all in the Nunn case. A couple who purchased property sixteen years ago under a joint tenancy with right of surviv-orship or tenancy in common with right of survivorship has had four major decisions from this court affecting their interest in the property acquired — Bernhard v. Bernhard; Nunn v. Keith; Jackson v. Fillmore, 367 So.2d 948 (Ala.1979); and this case. In none of the cases have we squarely held whether the decisions there were to be applied prospectively or retrospectively. What are the rights of persons who bought property as tenants in common with joint right of survivorship after the decision in Nunn v. Keith ? If there is a field for application of the doctrine of stare decisis, it is in the field of property law.

I personally have no objection to the creation of an indestructible co-ownership estate. But we are a court of law, not of feelings. The last invitation to affirm the acceptance of such an estate was in Nunn. This court declined. I believe that decision should end the matter.

      . Illinois had enacted a statute which recognized joint tenancies, but abolished the surviv-orship aspect thereof.