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December 1, 1999

southernjourney

FORTY ACRES AND A RULE

by David Underhill

An accidental theme park lies hidden in the surviving woods where I-65 roars across highway 43 about 12 miles north of downtown Mobile. As the city and its suburbs sprawl, this distant intersection is among the last along the arcing beltway to show the symptoms. The generic 24-7 snack and gas pit-stop shops are springing up like overnight mushrooms. The industrial zone flanking 43 a few miles further north is bulking up on tax-break steroids. South of the intersection, residential tracts are spreading in this direction from the urban core. Real estate companies post signs announcing land for sale.

Driving north on 43 from downtown, a right turn at the last light before I-65 leads across railroad tracks to Powers Drive (remember the name). It's a pleasant street of typical middle- American-dream suburban homes. Just beyond Powers, the pavement ends with a thump and a puff of sandy dust. A narrow lane bores into the woods. This is Hildreth Drive (remember the name).

The sunlight dims. Tree limbs lace the sky. Brush and vines almost scrape the sides of a car. To the left -- northward toward I-65 -- a clearing suggests recent logging. The cramped road ends suddenly at an open expanse divided by fences into several residential parcels and livestock pens. A few roaming goats glance at a visitor then return to their business. A pair of dogs come running to do their barking duty.

Behind them sags a house perhaps a century old, now used only for storage. It was the old home place for generations of an extended family whose branches are named Hildreth (Hilliard in some documents), Burden, Johnson, Frank, Gray and Poe, among others.

Near it stands a much younger house painted a vivid, cheerful blue and surrounded by a carefully tended yard and garden. This is the home of Rosemary Johnson. She doesn't know exactly where or when she was born, but she's about 75 years old. She has lived on this acreage over half a century since she married Ernest Johnson, and they raised nine children here.

LULA THE RELENTLESS

Down a gentle slope behind her house, across a fence and through the woods, Powers Drive is dimly visible to the south. In 1884 John Hildreth, the grandfather of Rosemary's husband Ernest, bought this land from Margianna (Margie Ann in some documents) and Howard Hall. The transaction is recorded at the Mobile county courthouse in an elegantly hand-scripted deed showing that Hildreth paid them "the Sum of Twenty Dollars lawful money of the United States of America" for "forty acres more or less."

The Halls had a daughter Lula, who became Lula G. Powers upon marriage to Tarleton Powers. Anybody who believes that women were liberated just lately from motherhood and domestic drudgery to assume an empowered role in the world beyond the home never knew Lula. Anybody who believes that America has recently become a nation of compulsive litigants clogging the courts with disputes better settled elsewhere never knew Lula.

Early in this century she became the chief watchdog for the real estate and other interests owned (or claimed, at least) by her husband and her parents. This apparently encompassed abundant property in north Mobile County. And even the fragmentary records available from that era display an astonishing volume of persistent and aggressive activity by her: letters demanding rent from tenants, threats to garnish the wages of debtors, arrest warrants against trespassers, lawsuits galore, and a baffling swarm of deeds filed in the courthouse asserting ownership of variously described and located pieces of land.

Swept up in the swirl of Lula's maneuvers were the descendants of John Hildreth and his 40 acres purchased from her parents in 1884. But his family was not a passive participant. They opposed her within their skimpy means, hired lawyers to help at times, frequently deflected or thwarted her, and flat defeated her at least once. This feud between Lula Powers and Hildreth's descendants (plus other probable squabbles) spanned decades.

UNSETTLING DEBTS

Sheer desire to hold and control property might explain the dogged endurance of both sides in the struggle. Yet snaking through this affair was something else, as all the contestants must have known, although it never appeared in any of the court filings.

In a 1939 letter to an attorney who sometimes represented the Hildreth clan, Lula Powers said that one of them had come to her seeking a friendly settlement of the latest snarl in the land tangle. Lula was willing (but only on terms specified by her).

Why should she make this offer "when I owed them nothing," she wrote. "Some say sentiment --- I suppose it is FOOL that is all. But these old negroes grandmother was my old nurse -- was faithful and true and belonged in the past to my old grandfather."

Yes, her pesky and resolute adversaries in the perpetual land battles had descended from slaves owned by her forebears. And the turf they'd been tussling over was likely a part of the old plantation. So this was actually a family feud--perhaps in an even more intimate sense than the ancestors merely having lived together on the same acreage and under the same roofs.

Whether the blacks and whites locked in this struggle were cousins or not, might the land sold cheap to John Hildreth by Lula's parents have been a gesture toward compensation for generations of unpaid labor? It wasn't the fabled 40 free acres and a mule. But hardly any emancipated slaves received that anywhere.

And, sentiment aside, Lula had been striving to retrieve those 40 purchased acres through the courts. Still, this uppity bunch of slave offspring resisted. That grated, as her letter to their lawyer explained: "You asked me the question "why I persecuted those negroes?" I could have added, the shoe was on the other foot, I was the one who was persecuted not them. Now if these negroes want to settle, these are the only terms they will get out of me. Ernest has been out and cut my timber after my son warning him not to do it."

COURTING TROUBLE

That Ernest was Ernest Johnson, grandson of John Hildreth. And the timber was Lula's only if it grew on her land. Ernest -- plus his siblings, half-siblings, cousins, uncles and all -- believed the land and trees belonged to them.

The issue had been tried just a couple years before and Lula lost, which must have rankled as she wrote that letter. And the victory celebration by Hildreth's descendants may have been rather muted.

This was the era of official segregation. The Ku Klux Klan had revived with fury in the teens and 20s. Lynchings, shootings and arson were not rare. Into the 60s the local Klan staged rallies in fields along highway 43 not far from the Hildreth place. As a cross burned against the night sky to give one gathering the traditional fiery finish, inspired Klansmen attacked and burned a nearby black home.

Yet when Lula Powers sued to evict the Hildreth offspring from "her" land, they boldly, openly stood their ground. They hired a law firm, Mahoner & Mahoner, in the First National Bank building downtown. (Borrowed might be a better word than hired. Letters much later about other matters end with polite reminders of fees still owed.) And they refused to yield.

The suit aimed at five particular acres, the same residential tract where Ernest Johnson's widow Rosemary still lives. Lula and her lawyer presented a barrage of deeds purporting to prove that she had bought back the land her parents sold to John Hildreth. These deeds involved many of his descendants supposedly selling her their various inherited shares of his land or selling her the entire 40 acres.

The partial record available from this trial, which ran in spurts for a year, does not fully show how the defense countered these deeds. Nor does it show the judge's opinion of the opposing arguments.

But his conclusion is clear. He had found something faulty with some of the deeds, at least, because he ruled against Lula. Her attorney initiated an appeal but didn't complete it. The case expired with this penned epitaph in the 1938 records of the Alabama Supreme Court: "Affirmed for failure of appellant to file a brief in said cause."

Lula had surrendered, for perhaps the first time in her life. Thus the heirs of John Hildreth became the legally recognized owners of the five acres from which she'd attempted to eject them. The battle over the rest of his land continued to this day.

SQUATTERS RIGHTS

Meanwhile, another generation sprouted there -- on the entire 40 acres, not just the five- acre patch of homes, gardens, pens and sheds. The youngsters helped with the chores, remembers Ernest and Rosemary Johnson's son Ernest, Jr. "You almost had to," he says. "We did it all," agrees brother Roosevelt. Planting, harvesting, cutting firewood, mending fences, tending the livestock: mules, cows, pigs, chickens, ducks, rabbits.

The roughest labor, like plowing with a mule, was done by the men. Brother Reginald says his father worked at the Alabama State Docks and farmed during off hours. A 1947 survey (evidently ordered by Lula Powers or members of her family) shows a large field with this note: "man plowing on west side." That was Ernest, Sr., asserts Reginald.

The survey also outlines additional fenced fields or pastures extending far beyond the five acres Lula had conceded to the Hildreth-Johnson clan in the lawsuit she lost ten years before. These "encroachments," in legalese, and other evidence might be useful for further suits or arrest warrants. Indeed, the Powers family had Ernest, Sr. arrested many times "for farming his own land," snaps Reginald. "When we was little we'd cry when they'd come and get him nighttimes," recalls sister Erma.

Yet arrest was hardly the worst that might befall a defiant black man in that time and place. Ernest, Sr. "was fully aware of the situation and what could happen," says Reginald. He considers his father's acts an early, lonely chapter in the civil rights movement.

Whether Ernest, Sr. also demonstrated his ownership by paying property taxes on the full acreage is not confirmed by any documents at hand. Nor are payments by the Powers family confirmed.

LAND RUSH

Records do contain a coherent account of the property's pedigree in recent decades on the Powers side of the dispute. The original 40 acres, minus the five surely owned by John Hildreth's heirs, became 28 acres instead of 35. A small piece had been sold at some point, and rights-of-way for highway 43 and the Southern Railroad took more. The remaining 28 acres meandered through the Powers family after the death of Lula and her husband. Then this land was sold outside the family and was eventually bought as an investment by a company called Gilbert Leasing.

Some of these deals were frankly speculative purchases by people who didn't even bother to walk across the acreage and look at what they'd bought. Their concern was simply the re-sale price for an easy profit when nearby development projects by others nudged all real estate values in the vicinity upward.

While this was happening the Johnson children were growing up and going away. Typically for such families, the girls inclined toward school, then maybe teaching. One, Shirley, is now an education administrator in Texas. The boys got drafted or enlisted. Some fought in Vietnam.

But most returned to visit or stay. And Reginald, in reaction to what Lula Powers had done long ago, became her reincarnation. He started creating a paper trail asserting ownership and paying property taxes on the same 28 acres that Lula had raised the Powers family flag over.

One of his efforts worked so well that it provoked the current "owner" via the Powers side of the contest, Gilbert Leasing, into suing his aged, faltering mother Rosemary. This document was a deed, dated October 1987, switching ownership from his dying father Ernest to Rosemary. It claims that the family title reaches back unbroken to John Hildreth's purchase of the land from Lula's parents in 1884.

So in 1997 Rosemary Johnson received a letter from Gilbert Leasing's lawyer, George Finkbohner, Jr., saying this deed "creates a cloud on my client's title," and she should remove it. If not, he will "proceed with legal remedies." The family hired attorney Ronnie Williams, and a very odd, abbreviated trial occurred last year.

CURT COURT

Gilbert Leasing, through attorney Finkbohner, opened with the usual witnesses and documents detailing surveys and the succession of owners. Then it called as a witness the legal creator of the cloud on the title, defendant Rosemary Johnson. And she did NOT claim to own the contested 28 acres!:

Q: But you live on one acre of land back there that your husband got that was divided up (the five acres) by the family, didn't you?
A: Yeah, it was divided up by the family.
Q: And you never did claim any interest in this 28 acres, did you?
A: Huh-uh. No, I didn't.

When the jury went out to lunch the judge, Edward McDermott, summoned attorney Williams to the bench:

THE COURT: Mr. Williams, do you want to tell me why we're litigating this case?...She's not making any claim to the property.
MR. WILLIAMS: Mrs. Johnson, Your Honor, is not cognizant of everything that's going on around her, you know.
THE COURT: Well, has she been declared incompetent?...You got any medical testimony that she's unable to take care of her financial affairs?
MR. WILLIAMS: No, sir...We believe that Mrs. Johnson doesn't really understand all that's being put to her, and her responses are not --
THE COURT: What is your ethical responsibility if that is your position?

The judge was implying that Williams had wasted the court's time by presenting a defendant who didn't even want to defend her supposed 28 acres. Or else Williams had presented a defendant medically incapable of defending herself. In fact, she had been diagnosed with Alzheimer's disease, but Williams brought nothing to verify this:

THE COURT: You got some serious problems. You've got some ethical problems, Mr. Williams. Let's break for lunch.

After lunch the defense lawyer was in full retreat:

MR. WILLIAMS: Your Honor, Mrs. Johnson informs me that she wishes to dismiss the matter.

And the judge was irritated:

THE COURT: All right. Y'all get out of here and let me tell this jury what happened.

The Johnson family was irritated too. They fired Williams.

When contacted for his views of the affair, Williams' only comment was, "no comment."

KEEP ON KEEPIN ON

The family, however, has not surrendered. According to daughter Shirley, when her mother denied any claim to the 28 acres she was speaking as someone who married into the family. She regards as hers only the spot where the house sits. The 28 acres, Rosemary feels, belonged to her husband by bloodline inheritance. And passages in the trial transcript show her saying this, although in a somewhat garbled way.

Many Johnsons and other kin were at the courthouse that day, ready to testify about the family's long claim to the land. They were not called to the stand before the trial reached its peculiar conclusion.

Reginald, especially, wanted to speak. He believes his years of research have revealed that Lula Powers' deeds are void, because she obtained them by trickery and fraud. He says he can prove it, given the opportunity. And he thinks some avenues of legal redress remain open, despite last year's loss in court.

George Williams says any such exertions would be futile. He is a veteran title examiner who testified for Gilbert Leasing that Lula's deeds to the 28 acres were valid, and he repeated this when called recently.

The Johnsons swear that they intend to proceed anyway. They won't be able to sustain the effort and expense unless they are united. Attorney Finkbohner said in a phone interview that they are deeply split. "At least two of the children are absolutely appalled at what Reginald Johnson is attempting to do," he asserts.

"He wants us to be divided, but we are not," retorts Shirley. She admits, as do all the other siblings contacted, that they've had some personal frictions and differences about legal tactics. Yet all of them also declare firmly that the entire acreage belongs to the family, both by their paper deeds and by their deeds done through generations of inhabiting and working their land.

TIME WARP

Last week, as the family's strays were beginning to arrive from afar for the traditional Thanksgiving gathering, Rosemary Johnson sat withering in a wheelchair inside her house. She mumbled incoherent replies to questions about her life on this acreage and about the lost lawsuit that has left it in jeopardy. As she spoke, her eyes flickered across the family shrine on the opposite wall, pictures of her children in their graduation gowns and military uniforms.

Outside -- to the north across the yard, and the sheds, and the goat pens and the woods of this rural relic snared in the advancing metro zone -- the ceaseless rumble of traffic on I-65 sounded like a death knell.


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