Larkin v. Haralson

66 So. 459, 189 Ala. 147, 1914 Ala. LEXIS 132

• Court: Supreme Court of Alabama
• Decided: November 7, 1914
• Status: Published

Opinion

ANDERSON, J.

This appeal is taken by W. R. Larkin alone, who did not interpose any demurrer to the bill of complaint in the lower court, and he cannot, therefore, assign nor insist upon error, in the overruling of a demurrer interposed by his corespondent, who is not complaining of the said ruling.—Schiff & Sons v. Andress, 40 South. 824.

We are of opinion that the 80 acres in question belonged to the heirs of Mrs. Larkin, instead of to this appellant alone, and that the chancery court properly held that the appellee ivas entitled to an undivided one-third interest in same. This being true, he met the requirement of showing a possession, actual or constructive, and a present right to the proceeds in case of a sale.' If the appellant was in the actual posession, his possession was for the benefit of the cotenants; and if not in the actual possession, the constructive possession was in the legal owners, of whom appellee is one.

As to the question of estoppel invoked by Shepherd, it is questionable as to whether or not this appellant can complain of the ruling in this respect, upon this appeal, since Shepherd seems satisfied with the ruling; but it is sufficient to say that the deed from the Par-dues to Shepherds’ immediate grantor recites the existence of the deed to the heirs, and that it was intended as a substitute for same.—Corbitt v. Clenny, 52 Ala. 480; Creswell v. Jones, 68 Ala. 420.

The decree of the chancery court is affirmed.

Affirmed.

Mayfield, Somerville, and de Graffenriad, JJ., concur.