70 So. 145 | Ala. | 1915
By, and in consequence of, written agreements executed by the complainant and Billups and, also, by their respective solicitors, a consent decree was entered by the court wherein the true line between these quarter sections was decreed to “be the half section line of section 14, * * * that the government line of the northeast quarter of said section * * * is the true and correct dividing line between the lands of the complainant and the respondent in this cause, so far as the lands involved in this controversy are concerned.”
A commission of three, to lay and mark the line thus agreed upon, was constituted by the decree, as the agreement binding the parties provided. No provision was made in the decree for a report by these commissioners of the data or evidence upon which they relied or acted in laying and marking the line thus established upon the agreement of the parties. The commission reported their action in locating the line and therein described the line marks and its location, which description the court carried into a formal decree. Under the agreements and under the consent decree, Billups cannot be heard to now complain that no basis for revision of the act of the commissioners in locating and-marking the line was provided in the consent decree, nor that the data or evidence or method used or relied upon by the commissioners in locating the line on the soil was not required by the- consent decree, or was not brought before the court in such manner as to admit of objections, and thereupon revision thereof by the court; no fraud on the part of the commissioners being asserted. If it was the desire of the parties to have a review or revision of the act of the commissioners in laying and marking the agreed line, that matter should have been saved in the consent decree.
In accordance with this warrant and authority of the consent decree, the commissioners reported to the court that they had ascertained that Billups, or his tenants or employees, had used, etc., a part of the land belonging to the complainant, and that the value thereof was $20. The court confirmed the report in this respect; and a personal decree for that sum was thereupon rendered against Billups.
It is insisted- for appellant that the chancery court was without rightful power in this instance, under the quoted definition of its jurisdiction in Code, § 3052, to try or to determine the title to land, or to render a personal judgment against Billups in the circumstances disclosed. The argument for the appellant is rested, in the main, upon the interesting discussion and decision of the Oregon court in King v. Brigham, 23 Or. 262, 31 Pac. 601, 18 L. R. A. 361, where it was ruled, in the interpretation of a statute of that state, of the character hereinabove set forth, that the conference on the court of equity of jurisdiction to try and to determine the location of confused or uncertain boundaries (our statute uses the terms “uncertain” or “undisputed” boundaries [see Ashurst v. McKenzie, 92 Ala. 484, 9 South. 262; Guice v. Barr, 130 Ala. 570, 30 South. 563], which were decisions extant when the quoted provision was introduced into Code, § 3052) does not include the power to try and to determine title, unless an equity, independent of the statutory extension of jurisdiction, appears to invite, sustain, or justify the court of equity in exercising its powers to try a question of title within and under the accepted practice in equity to accord full decision in
The report of the commissioners was silent in the respect indicated by the exception or objection quoted. The consent decree
The decree must be affirmed.
Affirmed.