Ladd v. Powell

144 Ala. 408 | Ala. | 1905

ANDERSON, J.

This bill was filed to quiet title to land, under § 809 of the Code of 1896.

This court has repeatedly held that in order to maintain such a bill, the complainant must have the actual or constructive possession, peaceable and undisputed, as contradistinguished from a disputed or scrambling one. Lyon v. Arndt, in MS.; Randle v. Daughdril, in MS.; Brand v. U. S. C. Co., 128 Ala. 579; Adler v. Sullivan, 115 Ala. 582.

The complainants established title through their ancestor, W. G. Powell the patentee, and in the absence of the actual possession of another, the law fixes the constructive possession in him who has the title. The complainants also established an actual possession of a part of the land by the said Powell, who had a small house on it and cultivated a small portion 'thereof in the year 1862. He died in 1864 and the land was abandoned 41 years ago, the house disappeared, timber grew, up on the cleared land and it has been, what might be termed, wild land, for years.

The respondents proved possessory acts from 1872 up to the hearing of this cause. Said acts consisted of getting wood off the land at different times, selling logs and cross-ties, permitting a timber man to camp on it, keeping trespassers from going on it and clearing it, paying-taxes thereon, and selling the same under a decree of the probate court by the heirs of John M. Ladd, Sr., after his death, and a continuation of acts of dominion by his sons, the purchasers at the sale. We do not here decide that these acts were sufficient to divest ’the title of the complainants, as this would doubtless be a proper matter for the determination of a jury in an action at law; but such acts, are entirely sufficient to contest the possession of complainants to the extent of defeating their right to maintain this bill.

The evidence as to “whose land was it generally known as?”, was not legal, but the exclusion of same cannot alter the conclusion reached.

The decree ■ of the chancellor is reversed and one is here rendered dismissing the bill.

McClellan, C. J., Tyson and Simpson, JJ., concurring.