55 So. 240 | Ala. | 1911
Lead Opinion
Appellant filed its bill against appellee under sections 5443 et seq., Code 1907, to quiet and determine title to lot No. 9, on the south side of Cherry street, in Forest Hill, Jefferson county, Ala.
It has been repeatedly held by thi,s court that a bill under this statute must allege that complainant is in the peaceable possession of the land — peaceable, as distinguished from scrambling. The possession, if peaceable, may be actual or constructive. The complainant, of course, may allege either actual or constructive possession, but must prove the character which he alleges, in order to be entitled to recover. If he alleges possession to be actual, proof of constructive possession would not support the averment; for the same reason, if he alleges his possession to be constructive, proof of actual possession would not support the averment. If the bill alleged peaceable possession only, then proof of either actual or constructive peaceable possession would support the averment. The possession, and the character ■thereof, are material averments in the bill, and, of course, must be proven as alleged. It is axiomatic that proof of material facts, without allegations thereof, is as fatal to relief as are allegations of such facts without proof. The averment of this bill as to possession is
Constructive possession follows the legal title; the rightful owner being deemed in possession until he is ousted and disseized. Possession follows the title, in the absence of actual possession adverse to it. — Woolfolk v. Buckner, 67 Ark. 411, 55 S. W. 168. The phrase is also sometimes used to denote that legal fiction which extends actual possession of a part of a tract of land to the whole, when the possession is held under a color of title describing the whole tract. — See 2 Words & Phrases. This phase of the definition, however, is not important to this case or decision. It is true that complainant proved actual possession at the time the bill was filed, but that is not what was alleged. It was alleged that it was the owner and had the constructive possession. Mr. Greenleaf says that it is an established rule that the evidence offered must correspond with the allegation and be confined to the point in issue. This rule, of course, supposes the allegations to be material and necessary. Surplusage, therefore, need not be
These rules have been strictly followed by this court as to variance, both in courts of law and of equity. In the case of Goree v. Clements, 94 Ala. 337, 10 South. 906, which was a bill to declare an absolute deed a mortgage and to redeem, the allegation was that the mortgage allowed the mortgagor to repurchase “within a reasonable and convenient time,” while the proof showed the time agreed on to be, “until he was able to pay,” and the variance was held fatal. In the case of S. & N. A. R. R. Co. v. Wilson, 78 Ala. 589, it was held that where the allegation relies on a nonfeasance of a certain duty, but the proof shows a malfeasance thereof, the variance is material and fatal. Likewise in the case of Webb v. Robbins, 77 Ala. 177, in which it was alleged that complainant owned the lands as her statutory estate, but the proof showed that they constituted her equitable estate, the variance was held material and fatal. Again, in the case of Munchus v. Harris, 69 Ala. 506, where the estate was alleged to be a fee, and the proof showed it to be a lesser estate, the variance was held to be fatal.
It is true, as argued by appellant, that a deed con-’ taining a description and referring it to a map having lines drawn upon it, and marking natural boundaries, and the natural objects delineated on its surface, should be construed as giving the true description of the land, as much as if the map were marked down in the deed. — 2 Dev. Deeds, §§ 1020, 1021. And, when such, a map is thus referred to, it is considered a part of the conveyance, and may be referred to for the purpose of aiding the identification, showing the form, and location of the tract. — Miller v. Cullum, 4 Ala. 581. It is likewise true as is argued that in case of a patent ambiguity parol proof is not admissible to show what was intended by the'writing, but that, if it is a latent ambiguity, the uncertainty may be explained or cleared up by the same kind of proof as that by which the ambiguity is made to appear. The law has been clearly and accurately stated by Stone, C. J., in the familiar case of Chambers v. Ringstaff, 69 Ala. 143, 144, as follows: “The distinction between latent and patent ambiguity
It results that the decree of the chancellor must be affirmed.
Affirmed.
Rehearing
All the concurring Justices are of the opinion that a rehearing should he denied, and approve the conclusion affirming the decree of the chancellor; but they do not concur in what is said in the opinion as to a variance between the allegations and the proof, and base their concurrence in the conclusion for affirmance, upon the ground that the respondent established title to the land in controversy, as was decreed by the chancellor.
The application is overruled.