Magnetic Ore Co. v. Marbury Lumber Co.

113 Ala. 306 | Ala. | 1896

McOLELLAN, J.

On a former appeal in this case it was, in substance, held that the bill was without equity, for that it failed to show that either of the parties was claiming or asserting title to any land or interest in land to which the other asserted any claim or title.-Magnetic Ore Co. v. Marbury Lumber Co., 104 Ala. 466. After the case was determined on the demurrers here, the complainant, on March 14,1895, amended the bill by adding thereto paragraphs 5, 6, 7 and 8. To the bill as thus amended the respondent, at or before the September term 1895 of the chancery court, interposed a demurrer. At that term the cause was submitted for decree on the demurrer to the bill; and on September 24, 1895, a decree was rendered sustaining the demurrer .and allowing thirty days for amendment of bill. The present appeal was taken on April 4, 1896, more than thirty days after the decree referred to last above. There having been no final decree in the cause, the present appeal being from a subsequent decree on demurrer to the bill as amended the second time, we are without authority to review the decree of September 24, 1895, and have not at all considered its correctness.

In October, 1895, the complainant further amended its bill by substituting a new paragraph 5, which is in the following language: “That your orator, and those under whom it claims, have been in continuous adverse possession of the lands named and described in the exhibit hereto attached, marked 'Exhibit A,’ together with the trees standing thereon, for more than ten years, openly claiming to own the same, paying taxes upon said lands, and exercising such rights of ownership over the same as such lands are capable of; and, during the entire time, neither the defendant nor those under whom it claims, has done any act evidencing claim to the ownership of the said lands or the saw timber standing thereon.” Admitting for the sake of argument, that the paragraph just quoted standing alone would show ten years adverse possession of the timber in question, and that, with other averments of the bill as thus amended not inconsistent with those of this paragraph, would present a case of equity cognizance under the act “To compel the determination of claims to real estate in certain cases, and to quiet the title to the same,” (Acts 1892-93, p. 42), it does not follow that there is equity in the present bill. To the contrary, the averments of the bill, as originally filed and as they now appear, are wholly inconsistent and at war with the averment of adverse possession of the timber interest made in this paragraph 5. The bill was filed March 13, 1894. Its aver-ments and exhibits show circumstantially and beyond question that up to October, 1886, less than ten years before bill filed, and also less than ten years before the amendment setting up title in complainant by adverse possession, the land upon which the saw timber in dispute stood was owned by the Louisville & Nashville Railroad Company, respondent’s grantor of said timber interest, and that said company held as such owner the •possession of the land, but in open acknowledgment and recognition of respondent’s title to the saw timber it had conveyed to respondent in 1881, which indeed, the railroad company expressly acknowledges and recognizes in its deed of October, 1886, whereby it conveyed the land, excepting in express terms the saw timber previously conveyed to repondent; to those under whom complainant now claims.

This amendment, therefore, is abortive to show any right by adverse possession in the complainant: the bill and exhibits show the contrary; and the case as now presented for our consideration is the same case we considered on the former appeal. For the reasons then given, the decree of March 12, 1896, sustaining the demurrer must be affirmed.

Affirmed.