50 So. 128 | Ala. | 1909
This bill was filed February 3, 1905, and its averments are sufficient to make a good bill under article 13, Code 1896 (sections 809-813), to compel
The two sides trace title or claim to a common source —Mrs. Paulina Woodward. The complainant claims through a deed executed to her husband and herself by said Paulina Woodward on the 5th day of June, 1890, purporting to convey 120 acres of land, including the 40 acres involved in this litigation. Subsequent to the filing of this bill, complainant’s husband, who was. a party complainant, died testate, leaving his widow as the only devisee under his will. The respondents deny the alleged peaceable possession of the complainant of the N. E. 1-4 of the N. W. 1-4 of section 18, township 1, range 3 W., the land in dispute, and set up affirmatively that they, and those through whom they claim, were in the possession of the 40 acres at the time the bill was filed, and had been so in possession ever since May 4, 1890, at which time Paulina Woodward executed to Safronia E. Johnson a deed to the 120 acres described in complainant’s deed.
It is shown in the answer that after the deed was executed to Mrs. Johnson she entered into possession of all of the land, and remained in possession, claiming the land as hers, until February 23, 1892, when she and her husband bargained and sold the 40 acres in question to one John T. Holland; that they made Holland a deed, but through mistake of the scrivener the land was not correctly .described. In the answer it is alleged, however, that Holland entered into possession of the 40-acre tract purchased from the Johnsons and intended to be described in the deed — the tract here involved — and has remained in possession ever since, except that he sold a half interest therein to his father, E. H. Holland. The bill as amended seeks to avoid the deed to Johnson on the ground of mental incapacity on the part of Paulina
■ The respondents, Holland, who were the only respondents to the original bill, disclaim interest in any of the land described in the Johnson deed, except the 40 acres here involved, and described as the N. E. 1-4 of the N. W. 1-4 of section 18, township 1, range 3 W. Nothing was said of the Johnson deed in the original hill. It was first brought in view by the answer to the original bill; and then complainant amended the bill by setting up and charging, amongst other matters, the invalidity of said deed, and making Mrs. Johnson a party respondent. The bill, as amended, prays that respondents’ claim to the land be determined adversely to them, that the deed from Paulina Woodward to Mrs. Johnson be canceled and be removed as a cloud upon complainant’s title, and that complainant’s title be quieted.
The statutes under which the bill is filed Avere enacted December 10, 1892, and the decisions of this court, construing them, are numerous, and emphasize their requirement that the complaining party’s possession must be a peaceable one, as contradistinguished from a disputed, contested, or scrambling possession. — Wood Lumber Co. v. Williams, 157 Ala. 73, 47 South. 202, and cases there cited and cases cited under section 5443, Code 1907. So it must be true that the present bill is without equity, unless the evidence reasonably satisfies the mind of the court that the complainant Avas not only in possession, either constructive or actual, of 40 acres involved, but that her possession was a peaceable one; and this is so, notwithstanding that feature of the bill in respect to the execution of the deed from Paulina WoodAvard to Mrs. Johnson having been procured
The chancellor decreed against- the respondents, and we here quote from his opinion found in the record the following: “The land is unimproved woodland, and none of the parties have ever been in actual possession. They prove possessory acts at various times, consisting of having timber cut, warning off trespassers, paying taxes, etc.; but, in the absence of actual possession, the payment of taxes and the occasional cutting of timber is insufficient to establish ownership, and in the absence of such possession the laAV fixes the constructive possession in him who has the title.” And then the chancellor proceeds, in the opinion, to determine the validity of the deeds as determinative of the equity of the complainant under the bill as amended, strikes down the deed from Woodward to Johnson and that from Johnson to Holland, and finally decrees the invalidity of the respondents’ claim to the lands. From the decree the respondents have appealed.
In Crabtree v. Alabama State Land Co., 155 Ala. 513, 46 South. 450, touching a possession which will defeat a bill filed under the statute upon which the present bill is predicated,- this court, through the present Chief Justice, said: “It is not necessary to show such character of adverse possession as would ripen into a title, but such possession as would amount to a disputed possession.” By the light of this case, and that of its congeners, it clearly appears that, in his opinion, the chancellor lost sight of the principle that it is as indispensable to relief under the statute that a constructive possession be a peaceable one as that an actual possession be such. The testimony is voluminous, 720 of the 812 pages comprising the record being required for its setting out; but it has been carefully read and considered,
The decree of the • chancellor will be reversed, and a decree will be here rendered dismissing the bill.
Reversed and rendered.
