| Ala. | May 17, 1906
— The case made by the original bill, is sufficiently shown by the decision 'and report of the case on the first appeal—131 Ala. 117" court="Ala." date_filed="1901-11-15" href="https://app.midpage.ai/document/gulf-red-cedar-lumber-co-v-oneal-6519192?utm_source=webapp" opinion_id="6519192">131 Ala. 117, 30 South. 466, 90 Am. St. Rep. 22. The changes made by the amendments to the bill are shown in the decision and report on the second appeal.—138 Ala. 134" court="Ala." date_filed="1902-11-15" href="https://app.midpage.ai/document/gulf-red-cedar-co-v-crenshaw-6520082?utm_source=webapp" opinion_id="6520082">138 Ala. 134, 35 South. 50. Both these appeals were taken to review decrees on demurrers interposed to the original and amended bills. The present appeal is taken from a decree overruling several
For our present purpose it is sufficient to state that the bill is one by alleged tenants in common in certain standing timber for an accounting agáinst the co-tenant for timber cut, removed and appropriated to its exclusive use, also for a discovery by the defendant officers of the defendant corporation in aid of the accounting sought, and for an injunction against further removal of the timber.
The first plea avers that the deed under which complainants claim title to an interest in the timber was never delivered to the grantees therein. The averment, of the plea does not controvert the averments of the bill relied on to show delivery of the deed, and which were held on the first appeal sufficient to show a delivery, but merely asserts that the deed was never delivered to the grantees. Construing the averment of the plea most strongly against the pleader, this simply shows, that the deed was not placed in the possession of the grantees, it is obvious that this may he. true and yet the deed under the averments of the hill was constructively delivered.
The second plea avers that the deed was not delivered until after an alteration therein, the effect of which was to reserve in the grantor a power to- sell the timber, which power, as appears from the bill, was executed (if the plea he true) by a conveyance of the title now claimed bv complainants to those from whom defendant claims, and by further conveyance to defendants extending the time for. removal of the timber.
The second plea is insufficient, in that it set up an immaterial issue, for whether the grantor reserved possession of the land until the youngest child arrived at the age of 21 years, or for his life, lie was without power as a tenant for life to sell the growing timber on the land. —Gulf Red Cedar Company v. Crenshaw, 138 Ala. 139, 35 South. 50.
Plea. 3 is a. recital of facts clearly set up in the bill. Is it not an effort, to interpose a demurrer in the form of a plea ? The same question .arose in the case when the cause was heie on a former appeal.—131 Ala. 117" court="Ala." date_filed="1901-11-15" href="https://app.midpage.ai/document/gulf-red-cedar-lumber-co-v-oneal-6519192?utm_source=webapp" opinion_id="6519192">131 Ala. 117,
What is said with reference to this plea applies with equal force to plea 4. The court did not err in ruling that these two pleas were insufficient.
The fifth plea sets up adverse possession in respondents at the time of the acts complained of; that their adverse possession continued from the time their entry was made and cutting begun until the timber was severed and removed from the .lands. The plea does not aver that defendants were in the adverse possession of the imoperty, that is, of any remaining standing timber, at the time the suit was1 instituted.
The sixth plea, sets up the same matter with the additional averment that such adverse possession continued down to the filing of the original bill. Neither of the pleas seek to set up a title perfected by ten years adverse possession of the standing timber. They proceed upon the hypothesis that if one co-tenant has ousted the other and asserted an exclusive claim of title hostile to his co-tenant accompanied by possession under such claim, this is a bar to a suit by the co-tenant for an accounting-in such case as this.
The cases relied upon as sustaining the pleas are Ashurst v. McKensie, 92 Ala. 490, 491, 9 South. 262, and cases following it. in which it is declared, that a court of eouitv is without power to determine the title to lands adversely held, in an action to enjoin an irreparable trespass. In that case numerous averments were made in the bill seeking to give it equity upon other and independent grounds, but the decision shows that all such averments were lacking and insufficient to give the court jurisdiction of the whole controversy.
Here, a clear case is made for an accounting as well as for a discovery against the co-tenant and its officers. This was determined after full consideration of the second appeal.—138 Ala. 134" court="Ala." date_filed="1902-11-15" href="https://app.midpage.ai/document/gulf-red-cedar-co-v-crenshaw-6520082?utm_source=webapp" opinion_id="6520082">138 Ala. 134, 35 South. 50. Where such is the case, the court having acquired jurisdiction upon
The seventh plea sets forth at length by reference the conveyances through which respondents - claim title or color of title to the timber in controversy .and sets forth that under such conveyances they and their predecessors entered into the possession of the timber while yet attached to the freehold exercising exclusive possession thereof, cutting and removing same from time to time, and, claiming under their deeds the absolute right to the timber, had held adversely for a period of more than ten years prior to the filing of the bill. The theory of the plea is that prior to the filing of the bill respondents’ title to the standing timber had become perfect by adverse possession, and this is set up as a defense to the whole bill. It is insisted for appellees that under the plea the bar of the statute became complete, if at all, only shortly before the bill was filed, that it presents no defense to an accounting for timber cut prior to the date upon which respondents’ title became perfect by adverse possession.
The plea must be construed as a whole. It shows that the title to the timber claimed by respondents or their predecessors was that purporting to be conveyed by the original deed from T. 0. Crenshaw and others to Steiner & Sons, a copy of which is made exhibit “B” to the bill, and referred to in the plea, This deed by appropriate words of conveyance calling for all the cedar timber upon certain described lands with the right to cut, remove,
By a subsequent conveyance the time within, which the timber wa.s to be removed, was extended, o>r sought to be extended.
It is not to be denied that where one or more of several tenants in common execute a deed to a third person purporting to- convey absolutely the entire estate, the possession of the grantee taken under such. conveyance is adverse to the remaining co-tenants.
Is that rule -applicable to the holder under the above conveyance? The character of interest of estate purporting to be conveyed by the deed determines the character of the entry. “Adverse possession rests in the intention of the possessor, as is sometimes said, the intention guides the entry and fixes' its character.”— Potts v. Coleman, 67 Ala. 227. This intention, as shown by the plea under consideration, was defined by the terms of the grant. What was the character of possession held under the terms of the deed? It contemplated an entry on the lands, the assumption of present possession and claim of ownership over the standing timber so- far as to effectuate the right to cut and remove the same within the time limited. It also carried the right to oust all others during such term and protect the possession from interference in any wav'. In fact, it purported to pass the present title to the timber, hut not an indefeasible title. The possession of the standing timber under this
It follows that the pleas are all had, and the decree of the chancellor is affirmed.