57 So. 706 | Ala. | 1912
Our statute authorizing a person in the peaceable possession of land, actual or constructive, to file a bill to quiet title to the same was construed in the case of Adler v. Sullivan, 115 Ala. 582, 22 South. 87. It was there said: “The act does not require the complainant to have title by possession; but if he has peaceable possession, under claim of ownership, as contra-distinguished from possession which is disputed or contested, it is all, as to this, the statute requires.” This case has been repeatedly cited and followed by cases, wherein the complainant’s bill has been dismissed, because the proof showed that, Avhether he was in possession or not, it was a scrambling, disputed, or contested possession. — Lyon v. Arndt, 142 Ala. 486, 38 South. 242; Randle v. Daughdrill, 142 Ala. 490, 39 South. 162; Ladd v. Powell, 144 Ala. 408, 39 South. 46; Wood v. Lumber Co., 157 Ala. 73, 47 South. 202; White v. Cotner, 170 Ala. 324, 54 South. 114. This Wood Gase is not opposed to the others, and is in conformity therewith, as there is a distinction between disputing the possession and the right to the possession. If the right to, and not the possession, is disputed, this fact should not defeat the right to maintain the bill; but if the possession itself, as distinguished from the right to same, is
The fourth headnote in this case is misleading. It is very question able, if the preponderance of the evidence in the case at bar does not place the possession of the strip in controversy in the respondent, instead of the complainant, when the bill was filed; but whether it does or not, and conceding, Avithout deciding, that the complainant was in possession, it was not such a possession as the statute requires, in order to maintain the bill. There was proof that the strip was surveyed and staked off: as part of the respondent’s right of way soon after the conveyance from the elder Davis — Davis, Jr., the complainant’s grantor, had his lots laid off and bounded to the front by this strip; he and the owners of other lots had their yard fences on the line btween the lots and said strip. There was proof that Davis never claimed the strip, and told parties to whom he sold or was trying to sell lots that the respondent OAvned the strip, and they would never be bothered with houses in front of them. There Ava's also proof that he declined to let a witness cut a certain tree from said strip, be
' Beversed and rendered.