Brintle v. Wood

*473 SAYRE, J. Complainants (appellees) filed their bill under the statute to quiet title. Defendant in his answer set up title acquired by purchase at a sale by the register, made in pursuance of a decree of the chancery court rendered in a cause to which complainants were parties ordering a sale of the property for division among the heirs at law of Nelson Wilson, deceased. There were numerous heirs, eighteen, and the record of the cause in which the sale was decreed purported to be the record of a cause to which all the heirs of Nelson Wilson were parties complainant or defendant. But complainants in this cause deny by their amended bill that they had any notice of that proceeding, and the question now in controversy is whether they should be bound by the decree rendered therein. In their original bill, complainants demanded a trial by jury of the issues there involved, the court ordered a jury, and the decree was based upon the verdict rendered. Several of the assignments of error argued in the brief for appellant are based upon the giving or refusal of charges in writing requested by the parties. There is no bill of exceptions, and the propriety of the charges in question will not be considered. A bill of exceptions is necessary even though the cause was tried by a jury in the equity court. Karter v. East, 220 Ala. 511, and authorities cited on page 515 of that report, 125 So. 655. In this connection, attention is called to the fact that section 6631 of the Code is not correctly reproduced in Michie’s Annotated Code. The sheriff’s return in the partition proceeding shows service on the complainants, appellees, in the present cause. This was and is denied by complainants. If service was had upon them or they had notice in fact by other means of the decree rendered in that cause, and failed to proceed with diligence for the assertion of their rights, the decree there rendered must be held to be conclusive against them. Wise v. Miller, 215 Ala. 660, 111 So. 913. Complainants’ case in respect to the main issue is that summons in the suit for partition or division was not served on them, nor did they have notice of that proceeding. The attack on the decree in that case is collateral. The burden is upon complainants to show by clear and convincing proof that they were not served with process in the suit for partition and had no such notice thereof as would have prompted a reasonable person, careful of his own interest, to go in and defend or at least care for his own interests in a proceeding brought for the purpose of changing the form of his property, in the present case a proceeding to convert land into money for the purpose of division among cotenants. The party who would question the sheriff’s return in any such case assumes a heavy burden of proof, for, otherwise, the judgments and decrees of the courts of the country would rest upon very insecure bases. Bastian-Blessing Co. v. Gewin, 217 Ala. 592, 117 So. 197, where cases are cited. It is not denied that an attorney at law, practicing at the Birmingham bar, did appear for complainants along with numerous other cotenants (the property had descended by operation of law from Nelson Wilson to children and grandchildren, eighteen in number), procured a decree of sale, and, after sale, disappeared from the community, became a fugitive from justice, and afterwards died; that’this attorney did represent some of the other cotenants is not denied. I-Ie executed his receipt to the register in chancery for the shares of these complainants, amounting to $721.80, in September, 1914. But it is denied that he had authority to represent them. It is averred that they had no notice of that proceeding and that they received no part of the fund into which the property was converted by authority of the decree rendered in 'that cause. That a majority of the owners joined in the petition for a sale or were parties defendant thereto is not denied. That proceeding was pending in the chancery court of Jefferson county for more than six months, and, so far as that court was concerned, was disposed of in 1914, and the bill in the present cause was filed five years later. The joint owners, with one exception, lived on the land, on small portions which had been carved out for them by the common ancestor, or in the close neighborhood. The records kept by the sheriff show that these appellees were served with process in the cause in which the decree was rendered. Deputy Patterson testified that he in person served the summons on one of .appellees, and that he entered the return showing service on the others at the request of L. F. Clayton, another deputy, whose regular business it was to serve writs in that part of the county in which the property in question is located. *474 Clayton, who testified by deposition taken in Mobile, where he now lives and who was eighty-two years of age at the time of his deposition, denied serving any of the summons for the parties to this cause. Whether he served summons for the parties to the partition suit, who are not complaining in this cause, does not appear. Raspberry Wilson, son of Nelson Wilson and the oldest of complainants, made affidavit for process against Martin in December, 1914, charging that he had fraudulently converted to his own use the sum of $132, the amount assigned to affiant as his share of the purchase money of the land in suit, “which said money came into his possession as agent or attorney of affiant.” The evidence has been stated in outline only. The court here'is of opinion that, the verdict of the jury to the contrary notwithstanding, the decree in the chancery court should have favored defendant there, appellant here. Quite a large part of the testimony reproduced in the record made up for this appeal is offered, as we understand, for the purpose of showing adverse possession by complainants of the property in dispute for more than ten years after the sale by the register in the partition proceeding. But the opinion here is that such evidence, at best for appellees, shows only a scrambling possession of small parts of the property, and cannot avail appellees as evidence of title by adverse possession. The questions now at issue are whether the court in the proceeding for sale in lieu of partition'acquired jurisdiction of these appellees by service of process, or whether, if jurisdiction was not so acquired and judgment was rendered on the unauthorized appearance of attorney Martin, appellees promptly sought relief and have proved all the facts necessary to that relief by clear and convincing evidence. Wise v. Miller, supra. The judgment here, on consideration of the evidence which, as we have said, has been stated in outline merely, is that appellees have not proved by clear and convincing evidence that they were not served with process in the partition suit; rather, that the conclusion should be, in view of the probabilities of the case presented by the evidence, that they were served and trusted the care of their interest to the attorney who without question represented some of their cotenants, and, in any event as to that, delayed too long to set up their claim of fraud after appellant had paid his money on the faith of the judicial decree and spent some other money, not a great deal, but enough to set a diligent and conscientious owner in motion, in improving the property and making his claim of ownership obvious to a casual observer and, certainly, to some of appellees co-owners, and to appellees as well. The decree under review will be reversed, and a decree here rendered denying the relief sought by appellees, and charging them with the costs incurred in the court below and in this court. Reversed and rendered. ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.