THOMAS, Judge.
James Clayton ("James"), the son of Estellene Clayton ("Ms. Clayton"), appeals from the trial court's judgment holding that Camden Clayton ("Camden"), James's son, is entitled to one-half of the royalties from a sublease of the mining rights in property that James had leased from Ms. Clayton ("the property"). James had leased the property from Ms. Clayton before he and Camden inherited the property as joint tenants from Ms. Clayton.
Before her death on July 28, 2009, Ms. Clayton was the sole owner of a 182-acre piece of land. In October 1999, Ms. Clayton leased the property, which comprises approximately 103 acres of the 182-acres tract to James. The lease was for a 10-year term with the option to renew the lease for another 10-year term, which James exercised before Ms. Clayton's death. On December 10, 1999, James sub-leased
Ms. Clayton died testate on July 28, 2009. James's lease was still operative at the time of Ms. Clayton's death. Ms. Clayton's will named James as personal representative of her estate and devised the 182-acre tract, including the property to James and Camden as joint tenants with the right of survivorship. James filed a petition to probate Ms. Clayton's will in the Etowah County Probate Court on August 4, 2009. On September 9, 2009, Camden filed a petition to remove the proceedings to the Etowah Circuit Court ("the trial court"); the trial court granted Camden's petition and entered an order of removal on September 15, 2009.
On October 2, 2009, Camden filed a petition alleging that James had collected tonnage royalties from Goodhope Contracting, Inc. ("Goodhope"),
On December 23, 2009, Camden filed a contempt motion against James, alleging that "at least two rental payments have occurred since the entry of the [November 10, 2009,] order and neither have been paid into the court by [James]." Camden further alleged that James had attempted to oust Camden and that James had committed, and would continue to commit, waste on the property. On January 14, 2010, the trial court again ordered that Goodhope pay all tonnage royalties to the clerk of the trial court. The trial court also set the matter for a hearing to occur on February 2, 2010.
On January 29, 2010, Camden filed a motion to amend the January 14, 2010, order of the trial court, requesting that the order require Blount Springs, the company that James had entered into the sublease with, rather than Goodhope, to pay the tonnage royalties to the clerk of the trial court. The trial court granted Camden's motion on February 1, 2010.
On February 10, 2010, James filed a "motion to set aside order for payment of royalties." The trial court set James's motion and all related issues for a hearing to occur on March 1, 2010.
On March 29, 2010, following a nonjury trial, the trial court entered an order in favor of Camden, stating in pertinent part:
On April 27, 2010, James filed a motion to alter, amend, or vacate the trial court's March 29, 2010, order. The trial court denied James's motion on May 10, 2010. On June 9, 2010, James filed a motion requesting that the trial court set aside its May 10, 2010, order denying James's motion to alter, amend, or vacate the March 29, 2010, order. Camden filed a motion to strike James's motion to set aside the May 10, 2010, order, which the trial court granted on June 15, 2010. Also on June 15, 2010, the parties filed a "joint motion to certify [the trial court's] May 10, 2010, order" as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. The trial court granted the parties' joint motion, and James appealed to our supreme court. Our supreme court transferred the appeal to this court on August 5, 2010, pursuant to § 12-2-7(6), Ala.Code 1975.
This court set forth the well established standard by which we review trial court judgments based on ore tenus evidence in Farmers Insurance Co. v. Price-Williams Associates, Inc., 873 So.2d 252 (Ala.Civ.App.2003):
873 So.2d at 254-55 (quoting City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala. Civ.App.2002)).
Initially, we note that the trial court did not set forth specific findings of fact upon which it based its judgment that the tonnage royalties were to be split evenly between James and Camden. However, as noted earlier, "it is well settled that where the trial court does not make specific factual findings, this court will assume that the trial court made such findings as would support its judgment." Berryhill v. Reeves, 705 So.2d 505, 507 (Ala.Civ.App. 1997) (citing Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992)).
James argues on appeal that he lawfully leased the property from Ms. Clayton before her death, that he lawfully sublet the mining rights to the property to Blount Springs, and, thus, that he is the "sole legal recipient" of the tonnage royalties generated from the property. James further argues that Ms. Clayton's interest in the property did not include an interest in the tonnage royalties from the sublease and, thus, that Camden's interest in the property likewise does not include an interest in the tonnage royalties. Relying on Kelly v. Kelly, 250 Ala. 664, 35 So.2d 686 (1948), and Kellum v. Balkum, 93 Ala. 317, 9 So. 463 (1891), James argues that Ms. Clayton's death did not terminate his lease; rather, he argues, upon Ms. Clayton's death, he and Camden were substituted as the "`landlords of their ancestor's tenants....'"
The present case is distinguishable from Kelly and Kellum. In the present case, unlike in Kelly and Kellum, James, the lessee, inherited from Ms. Clayton, the lessor, the property as a joint tenant with the right of survivorship. Under Alabama law, our supreme court has held that "[i]n a joint tenancy each tenant is seized of some equal share while at the same time each owns the whole." Porter v. Porter, 472 So.2d 630, 634 (Ala.1985) (citing Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972)). Therefore, Ms. Clayton's reversion interest in the fee and James's tenancy interest vested in James when he and Camden inherited the property from Ms. Clayton as joint tenants. Accordingly, James's lease was destroyed under the doctrine of merger. See Whigham v. Travelodge Int'l, Inc., 349 So.2d 1078, 1085 (Ala.1977) (citing McMahan v. Jacoway, 105 Ala. 585, 17 So. 39 (1894); Otis v. McMillan & Sons, 70 Ala. 46 (1881); and Martin, Bradley & Co. v. Searcy, 3 Stew. 50, 52 (1830)); see also Welsh v. Phillips, 54 Ala. 309, 316 (1875) ("The general rule of law is, that when a greater and less, or a legal and equitable estate, meet and coincide in the same person, they are merged, the one drowned in the other."). Holding otherwise would result in the absurdity our supreme court warned against in Otis, 70 Ala. at 59: "There can be no greater absurdity, than to place [a man] in the relation of being his own landlord, and his own tenant, at one and the same time; bound himself to pay, and to receive rent." Our conclusion that James's lease terminated at the moment James and Camden inherited the property from Ms. Clayton as joint tenants negates James's further arguments.
The dissent asserts that, "[i]n this case, the same persons have never held and do not hold both the freehold interest and the leasehold interest in the property at issue" because James and Camden inherited the
In reaching the conclusion that it does, the dissent relies upon a case from the Supreme Court of New Mexico, Tri-Bullion Corp. v. American Smelting & Refining Co., 58 N.M. 787, 277 P.2d 293 (1954). The dissent asserts that in Tri-Bullion "the New Mexico Supreme Court denied application of the merger doctrine in circumstances almost identical to those at issue in this case." 75 So.3d at 658. Though "almost identical," the facts in Tri-Bullion present a significant distinction from the present case. In Tri-Bullion, American Smelting, a corporation that held a lease allowing it to mine certain real property, later acquired fee-simple ownership of the same real property as tenant in common with Tri-Bullion. 58 N.M. at 792, 277 P.2d at 296. In the present case, James and Camden acquired fee-simple ownership of the property as joint tenants with the right of survivorship.
Alabama law has long recognized a distinction between joint tenants and tenants in common. Under Alabama law, joint tenants share the unities of interest, title, and possession. See Nunn v. Keith, 289 Ala. 518, 524, 268 So.2d 792, 797 (1972) (noting that the unity of time, though a requirement at common law to create a joint tenancy, is not required under Alabama law in order to create a joint tenancy); see also 48A C.J.S. Joint Tenancy § 8 (2004) ("[I]n ... a joint tenancy ... each of the owners must have one and the same interest; conveyed by the same act or instrument; ... and each must have the entire possession of every parcel of the property held in joint tenancy as well as of the whole." (footnotes omitted)). Conversely, tenants in common share only the unity of possession. Porter, 472 So.2d at 633 (citing Van Meter v. Grice, 380 So.2d 274 (Ala.1980)) ("[A] tenancy in common requires only one unity, that of possession."). Further, tenants in common are not considered to own the entirety of the parcel, as in a joint tenancy; rather, each tenant in common owns an undivided part of the parcel. Kellum v. Williams, 252 Ala. 71, 72, 39 So.2d 573, 574 (1949) ("A tenancy in common may be defined as that character of tenancy where two or more persons are entitled to property in such manner that, while there are several freeholds, the possession is not divided but is a single unity...."); see also 86 C.J.S. Tenancy in Common § 3 (2006). Therefore, our conclusion that the merger doctrine applies to terminate the lease between Ms. Clayton and James is consistent with Alabama law.
The dissent also asserts that, "even if the joint tenancy with a right of survivorship somehow could be viewed as a unification of the freehold estate and the
James's argument that Camden's interest in the property is limited to the interest that Ms. Clayton held is correct. However, James's conclusion that because Ms. Clayton was not entitled to the tonnage royalties likewise bars Camden from the tonnage royalties does not follow. Rather, James and Camden inherited the property as joint tenants. "In a joint tenancy each tenant is seized of some equal share while at the same time each owns the whole." Porter, 472 So.2d at 634 (citing Nunn, supra). James's relationship with Ms. Clayton was that of lessor-lessee. However, James's relationship with Camden is that of joint tenants, which "have a common right to possess and enjoy the property." Porter, 472 So.2d at 633. Further, our supreme court has held that
Faust v. Faust, 251 Ala. 35, 37, 36 So.2d 232, 233 (1948). Therefore, we affirm the trial court's judgment that James and Camden are entitled to an equal share of the tonnage royalties.
James also argues that Camden produced no evidence indicating that James had committed waste. However, based on our previous holding, we need not address this argument. See Favorite Market Store v. Waldrop, 924 So.2d 719, 723 (Ala.Civ. App.2005) (stating that this court would pretermit discussion of further issues in light of dispositive nature of another issue).
Based on the foregoing, we affirm the trial court's judgment.
AFFIRMED.
PITTMAN, J., concurs.
THOMPSON, P.J., concurs in the result, without writing.
MOORE, J., dissents, with writing, which BRYAN, J., joins.
MOORE, Judge, dissenting.
I respectfully dissent.
In the proceedings below, Camden Clayton, the grandson of Estellene Clayton ("Ms. Clayton"), removed the probate proceedings relating to Ms. Clayton's estate to the Etowah Circuit Court ("the trial court"). Before the removal, it was established that, in her will, Ms. Clayton had named James Clayton, her son and Camden's father, as the administrator of her estate and that Ms. Clayton had devised certain real property ("the property") to James and Camden as joint tenants with
The evidence from the brief hearing conducted by the trial court indicates that, at some point in the late 1990s, James leased a portion of the property from Ms. Clayton.
The trial court evidently concluded that Camden, by virtue of his inheritance of a joint interest in the property, obtained a right to share equally in the royalties from the mining lease. The main opinion affirms that judgment on the theory that James's lease terminated upon the death of Ms. Clayton, reasoning as follows:
75 So.3d at 653. The main opinion further concludes that, once James's lease was destroyed, James and Camden, as joint owners of the leased property, were entitled to share in the proceeds of the mining royalties equally. 75 So.3d at 653.
I respectfully disagree. Most of the cases cited in the main opinion involve fact situations in which, by one form of conveyance or another, a lone tenant acquires in his or her individual capacity a fee-simple interest in property that is subject to a lease. The rule of law applicable to that situation is that, when the same person holds both the lesser leasehold interest and the greater freehold interest, the lease is extinguished. See Whigham v. Travelodge Int'l, Inc., 349 So.2d 1078, 1084 (Ala. 1977) (noting that, when lone tenant purchases leased property at a foreclosure sale, his or her new ownership of the freehold estate destroys the lease); McMahan v. Jacoway, 105 Ala. 585, 588, 17 So. 39, 39 (1894) (holding that a sublease merged into the lease when individual sublessee purchased lease from individual sublessor); Otis v. McMillan & Sons, 70 Ala. 46, 49 (1881) (stating the general rule that, when an individual becomes both landlord and tenant, the lease is destroyed by merger); and Welsh v. Phillips, 54 Ala. 309, 311 (1875) (stating that merger doctrine applies when the "same person" holds greater and lesser interest in same property). The fact situation in Martin, Bradley & Co. v. Searcy, 3 Stew. 50 (1830), is slightly different because, in that case, the owner of the fee-simple interest in the property sold the property to his tenants, plural. However, the same result inured. In Martin, Bradley & Co., the court held that, when the transfer of ownership resulted in the tenants owning both the freehold estate and the leasehold estate, the doctrine of merger extinguished the leasehold interest because the same persons cannot hold both interests. 3 Stew. at 52. The holdings in the foregoing cases are consistent with the common law as stated in the current Corpus Juris Secundum, which describes the necessary elements for merger as
31 C.J.S. Estates § 156 (2008).
In this case, the same persons have never held and do not hold both the freehold interest and the leasehold interest in the property at issue. Upon Ms. Clayton's death, pursuant to the terms of her will, her freehold interest in the property fell to James and Camden as joint tenants with rights of survivorship. However, that freehold interest remained subject to the leasehold interest, see Kellum v. Balkum, 93 Ala. 317, 9 So. 463 (1891), and Kelly v.
In Sisson v. Swift, 243 Ala. 289, 9 So.2d 891 (1942),
Although Alabama law has not directly addressed that point, the New Mexico Supreme Court denied application of the merger doctrine in circumstances almost identical to those at issue in this case. In Tri-Bullion Corp. v. American Smelting & Refining Co., 58 N.M. 787, 277 P.2d 293 (1954), American Smelting acquired a lease allowing it to mine certain real property. American Smelting later acquired fee-simple ownership of the same real property as a tenant in common with Tri-Bullion. The New Mexico Supreme Court held that the cotenancy did not extinguish the lease. The court stated:
Tri-Bullion Corp., 58 N.M. at 794, 277 P.2d at 297. Based on Sisson, and the basic principles of the merger doctrine, it appears that, if our supreme court were addressing this case, it would use the same reasoning and reach the same holding as did the court in Tri-Bullion.
The main opinion points out that the cotenancy at issue in Tri-Bullion differs from the joint tenancy with right of survivorship at issue in this case. Although I recognize that distinction, I do not believe it compels a different result. The principle to be derived from Tri-Bullion and Sisson is that merger occurs only when a complete identity of ownership concurs in two estates in the same property. See First Alabama Bank of Tuscaloosa, N.A. v. Webb, 373 So.2d 631, 637 (Ala.1979) ("Sisson described the doctrine of merger in terms of the same person owning both the legal and equitable estates."). The
At any rate, even if the joint tenancy with a right of survivorship somehow could be viewed as a unification of the freehold estate and the leasehold estate in the same person, the doctrine of merger would not apply. Our supreme court has long recognized that the common-law rule of merger is highly disfavored and will not be applied rigorously when to do so would be to the disadvantage of the prior owner of one of the estates. Kidd v. Cruse, 200 Ala. 293, 296, 76 So. 59, 62 (1917). In Kidd, the court surveyed the law in other jurisdictions in order to declare Alabama law on the doctrine of merger. The present state of the law is best summarized as follows:
Mobley v. Harkins, 14 Wn.2d 276, 281-82, 128 P.2d 289, 291 (1942) (emphasis added). See also IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 108-09 (Miss.1998) ("`"Termination does not, however, always follow the acquisition of the landlord's title by the tenant. The question whether or not a merger affecting a termination of the lease results depends on what will best serve the interests of justice and the intention of the parties."'" (quoting Zouboukos v. Costas, 232 Miss. 860, 870, 100 So.2d 781, 785 (1958), quoting in turn 51 C.J.S. Landlord and Tenant § 94, p. 666)).
In this case, James obtained a lease from Ms. Clayton, which allowed him to enter the mining lease that has generated his sole source of income for over 10 years and which he was relying upon to continue to generate income for the next 8 years. If the court applied the merger doctrine mechanically so as to terminate James's lease, the mining lease would attach to the property and James would be required to share one-half of the mineral royalties with Camden as a joint tenant. See Faust v. Faust, 251 Ala. 35, 37, 36 So.2d 232, 233 (1948). In other words, James would experience a loss of half of his income through no action of his own. Because that result would be inimical to James's interest, the doctrine of merger cannot be applied.
Having reviewed the record and the briefs of the parties thoroughly, I do not find any legal or factual justification supporting the trial court's decision that James and Camden are entitled to equally share in the royalties. I would reverse the trial court's judgment and remand the case to the trial court with instructions to vacate that portion of the judgment awarding Camden one-half of the past and future royalties from the mining lease.
BRYAN, J., concurs.
