140 So. 595 | Ala. | 1932
We are not of opinion that the court erred in overruling the motion to dismiss the bill. The statute and rule of practice authorize a revivor, on motion before the register or the court, by and in the name of the complainant's "successor orparty in interest," without a bill of revivor. Code 1923, § 6552; Rule 101, Chancery Practice, vol. 4, Code of 1923, p. 938. (Italics supplied.)
The matter in controversy here is the title to the property, and the party in interest, within the meaning of the statute and rule of practice, was the party alleged to have the title. Sims, Ch. Pr. § 620; Rhea v. Tucker,
The statute, section 9905, Code of 1923, authorized the filing of the bill by the original complainant in his representative capacity, yet by so doing he was asserting and seeking to protect the title that resided in the testator up to the time of his death, and the parties in whose names and behalf the bill was revived, taking the averments of the bill as true, succeeded by the death of the original complainant to the title which he was seeking to protect in his representative capacity.
The fact that the original complainant had statutory authority for proceeding in his representative capacity differentiates this case from that of Bowie v. Minter,
The complainant made no effort to show that Warren W. Worcester in his representative capacity, his cocomplainants, or his successors, ever had actual possession of the land. They rest their case solely on the contention that they have established a good paper title to the land which draws to it constructive possession, and that they have shown that no one was in actual possession.
One fault in this contention is that the bill as last amended alleges that complainants *363
"are in the actual peaceable possession claiming to own" said land. In Montgomery v. Spears et al.,
In Cost v. Teague et al.,
King Lumber Co. et al. v. Spragner et al.,
Another fault in the appellees' contention is that they failed to show that no one was in the actual possession of the property. The evidence goes to show that the land in question was unfenced, cut-over land; that the respondent and those under whom he claimed had at least color of title; had been exercising acts of ownership over the property for some time before the bill was filed, by building a tent or shack on the property, sinking a well, keeping off trespassers, occupying the same by tenant or agent, and clearing part of the land, and assessing and paying taxes thereon. The evidence further shows that the complainants and those under whom they claim had not assessed the land for taxes for more than twenty years, and that the most they had ever done — assuming that this was done by them or their authority — was to put up signs of warning against trespassers, and these were immediately taken down by the respondent's agent. In short, the complainants have failed to prove the averments of the bill essential to its equity and to give the court jurisdiction to settle and determine the title. Buchmann Abstract Investment Co. v. Roberts,
In George E. Wood Lumber Co. v. Williams,
Under the evidence in this case, if we disregard the averment of actual possession, the complainants have failed to meet the burden of showing peaceable possession, and their bill is due to be dismissed.
The law as settled in the later decisions of this court is that, where the controversy between the parties in bills to quiet titles is one of ownership and title, a bill and answer conforming to the requirements of the statute, and the complainant proves possession at the filing of the bill, and that no suit is pending in which the title or claim of the respondent can be tested, every issue necessary to a settlement of the controversy is presented. It is only where one of the parties seeks relief not within the scope of the statutory proceedings that a cross-bill is proper or necessary. Grayson v. Muckleroy,
The decree of the circuit court, in so far as it grants relief to the complainants, is therefore reversed, and a decree will be here rendered dismissing the original bill as last amended. Scott v. Scott,
Reversed and rendered in part, and in part modified and affirmed.
ANDERSON, C. J., and BOULDIN and KNIGHT, JJ., concur. *364