*1 18 rehearing 115; 550, Ray agree application I Watson, v. for
v.
215
112 So.
Ala.
is due to be
the view
Hilman,
denied.
I
hold to
424,
still
229 Ala.
2. If or contrac- possession, actual not entitled relief and is
tive, cannot have Hagler v. quieted in himself.
to have 307,128 592; Holland v. 221 So.
Boner, 462, 50 128. Coleman, 162 Ala. So. So.2d 134 168 made an ade- 3. If Joseph et D. MYERS al. 1111, Tit. quate answer under respondent has the better proof shows L. MOORER et al M. . then Div. 767. quieted him- have title should Alexander, self. Collier Supreme Court of Alabama. Prestwood, 153 Ala. 367; O’Neal March 1961. 251; Vandegrift v. Southern Mineral 45 So. 983; Co., Sloss-
Land Lollar, Rehearing & I. Co. v. S. Sheffield Denied Oct. 272; Jackson, 180 Rucker v. Childress, Stewart v. Myers Moorer, p. post, application for rehearing is over-
ruled.
LAWSON, SIMPSON, STAKELY and
COLEMAN, JJ., concur.
LIVINGSTON, J., GOODWYN, C.
J., in the result. concur GOODWYN, (concurring special- Justice
ly). *2 Reams, Stephenson W. Dewitt R.S.
Pillans, Reams, Tappan, Roberts, Wood & Mobile, appellants. for Caffey, Caffey, Gallalee & Mobile, for appellee, Moorer. Turner,
McCorvey, Johnstone, Adams & May, Mobile, appellee, for Magnolia Petro- leum Co. COLEMAN, any part there- property, or said on the Justice. of, since time. appeal by complainants from a
This is an
decree,
prayed
granting the
the time
final
relief
mean from
“Court: You
by respondents
bill,
present
in a suit
time?
in their cross
deed to
the tax
*3
whereby
complainants
seek to
is
That
cor-
Yes
Reams:
sir.
“Mr.
to redeem
a tax
and
sale.
rect.”
The land
is
involved
described as
were
complainants
WJ4s
contentions of
NWj4
Township
in
of Section
as
court
expressed by counsel
the trial
North,
West,
County.
Range
Mobile
in
follows:
appears
It
lie
Citronelle oil field.
theory,
under which
“The
improvements
There are no
and
on
land
case,
as a
is
same
num-
brought this
except
it is unenclosed
a fence which
for
come from
that have
other cases
ber
either,
complainants
was erected
as
con-
County
of Mobile
Court
the Circuit
tend,
or,
respondents
after
filed
suit was
Supreme Court of
up
gone
and
contend,
days
a few
filing.
before such
Tire
Statutory Bill
is a
Alabama.
is
land
bounded on one
side
Russell
is
with that
Title, and combined
Quiet
and, prior
discovery
oil,
Road
was
a tax sale
redeem from
effort to
chiefly
turpentine
valuable
and timber.
296, Title
provisions of Section
under
of Alabama of 1940.
the Code
Complainants are
holders of
record
section,
the cases
under
that
and
Under
Respondents
claim
under
deed from
section,
construing
we feel that
that
'A.
acquired
B.
who
under a tax
Jeffries
settled,
long as the
that so
the law
parties agreed
stipulated
sale. The
actual,
taken
purchaser
tax
follows:
adverse,
continu-
open, notorious and
“One: The record
prop-
title to this
property and
pos(s)ession of the
ous
erty is out of the Government and was
years,
the record
that
it for three
held
in
vested
Brown, widow,
at
Jennie
from the
are
redeem
entitled
holders
conveyed
the time she
property
said
theory
sale,
is under that
and it
tax
D„
Myers
William
M.
Joseph
n
brought.”
suit
Myers.
from,
appealed
the trial
By the
Caffey:
“Mr.
Modify that
complainants’
right
denied
time of
deed.
bill, and decreed
deem,
their
dismissed
owners of the land
are the
respondents
By
“Mr. Reams:
deed dated March
right,
complainants have no
suit
18, 1932.
therein.
title,
interest
“Two:
respondent(s) acquired
tax title to
property by
said
understand the briefs
means
As we
of com
conveyances
(sic)
from A.
Jeffries,
appeal
B.
plainants, they contend on this
who received tax deed under a
appealed from
tax
was
error be
the decree
against
sale
F.
Joseph
William and
.
re
evidence fails to show that
D.
cause
Myers.
grantor, Jeffries,
spondents
who
and their
title,
the tax
have had three
purchased
“Three: A. B.
and M. L.
Jeffries
adverse
years of
as will
Magnolia
Moorer
Petroleum Com-
respondents
under the short
vest
pany
July as(s)essed
and paid
limitations,
Title
Code
statute
property
taxes on the said
year
each
n acquired
A. B.
since
the title
Jeffries
12, 1938,
.
July
one,
Testimony
on
no
taken
other
ore tenus and we
persons,
paid
than
said
tax
sufficient
to sustain
it;
property
claimed
about the
or who
three
have had
finding
9, 1955,
day this suit
on November
since
more, of adverse
years, or
as-
surveyed and
filed, he had the land
acquired
tax deed.
Jeffries
making
survey;
making
sisted
Brown, stipulated holder of
Jennie
hours,
survey occupied about
three
Myers,
conveyed
F.
title,
to William
record
twelve-thirty;
from nine-thirty to
Joseph
deceased,
brother,
D.
and his
now
Trespass-
put up
“No
dozen
about one-half
March
quitclaim
dated
Myers, by
deed
front
name,
ing” signs bearing his
some
testified that
Macon
W.
H.
property; and
and some in back of the
Mrs.
“Myers. Mr. or
agreement
oc-
one
he had since
land on
he,
was,”
Myers.
which it
I don’t know
stumps.
casion to look at two
*4
Macon,
1933 to
turpentined
land from
other
no
in the record
We have found
1938.
any actual
tending
evidence
to show
Myers
in Sa-
died intestate
William F.
complainants since
by any
session
of
vanna, Illinois,
two chil-
leaving
in
heard ore
Clearly,
1938.
on the
Myers
dren,
Myers and Edna
Robert F.
error,
tenus,
find
could,
without
F.
McKay.
Myers,
Joseph D.
Robert
complainants
possession
that
actual
had no
Myers,
Myers McKay, and A. B. Case
Edna
that
after
do not understand
We
1938.
Joseph D. and Robert
who holds deeds from
they
complainants seriously contend that
Myers,
complainants.
F.
are the
1938.
were in actual
after
Joseph
Myers
in
D.
testified
answer
contend, how-
Complainants appear to
years
he is 59
interrogatories as follows:
ever,
they had
that
constructive
Savanna,
lived in or near
Il-
old and has
and that their
as holders of
record title
linois,
life;
all his
he visited Mobile once
ousted
not been
constructive
had
F.,
years ago;
Myers
23
he and William
respond-
part
by
of
on
never lived in or near Citronelle
and
Timber
ents,
Land &
as was held in Tensaw
Myers
and children
widow
of William F.
Rivers,
Company
there; Joseph
lived
D. and William
.never
land,
Myers paid
Joseph
F.
taxes
but
on
acquired
above,
As
A.
noted
B. Jeffries
they paid any
D. does
believe
taxes aft-
conveyed
he
a tax deed in 1938.
'er 1938 and he did not remember whether
respondent,
The oth-
M. L. Moorer.
they paid
property
on the
since
taxes
Magnolia Petroleum Com-
respondent,
er
1933;
Myers
Joseph D.
first learned that oil
from Moorer.
pany, holds an oil lease
found at Citronelle when A. B.
Joseph
Savanna,
went
Case
to see
D. at
Illi-
true,
which,
testimony
if
There
1955;
nois, October,
Joseph My-
in
D.
that,
acquiring
deed in
after
showed
ers,
$50,
executed a deed to Case dated
on the land and cut tim-
went
Jeffries
26, 1955,” whereby
“October
Myers re-
Moorer,
thereon;
respondent,
that the
ber
served to himself an undivided one-half in-
from
that
bought the land
Jeffries
in “the usual one-eighth royalty.”
terest
land;
went
that
physically
on
Moorer
“Keep Off”
found “Posted”
Moorer
or
Joseph Myers
A deed from
D.
to A. B.
around the land
placed
that had been
signs
is in evidence and is dated
Case
October
Moorer,
employees,
by
Jeffries;
that
by
A similar deed of same
date from
years in
turpentined the land for three
Myers” to Case for
“Robert
a recited con-
2,000
1,400
1942, 1943,
that
is also in
sideration
$25
evidence.
placed on
cups
trees on
land
were
employees
operation;
that Moorer had
on
testified
A. B. Case
cross-examination
keep
the land and
after
tres-
looking
the land
he had been on
once
.that
before
off;
frequently
that
himself
passers
Moorer
it,
before;
a month
bought
about
he
that
land;
in 1948
on the
and 1949
went
up
time he did not know anything
to that
had certain
cut and
timber
instruct-
Moorer
Myers and
Joseph D.
In the
trees;
answers
party
ed the
cutting
leave certain
pro-
interrogatories
Lawrence
Smith to
A.
party
cutting
timber built
pounded
them,
statements
signs
mule
lot
the land in
on
com-
to 1947 one or both
there;
the lot
Moorer
are still
that in
My-
plainants,
Myers and Edna
Robert F.
stump
executed
lease and the lessee
Armed
McKay,
serving in the
ers
were
stumps
moved
author-
from the land under
Complainants
Forces of the United States.
lease;
ity
that in
Moorer sold
in-
argue
possession Moorer was
pulpwood
purchaser
on the land and the
complainants, Robert
against
effective
cut
pulpwood
and removed
under Moorer’s
service, and
Edna,
military
during
their
authority;
Moorer executed
three
failed to show
right
way
deed to the Alabama Power
mili-
possession since said
years of adverse
Company
company
power
and the
erected a
MacQueen
tary
service terminated. See
deed;
line on the land
McGee,
‘“ * * due to circuit court is The decree *. “To constitute an actual affirmed. possession is only necessary of land it is put it to such use exercise such Affirmed. present dominion over it inas its state reasonably adapted it is to.” Alabama MERRILL, STAKELY, and SIMPSON, Matthews, State Land Co. v. 168 Ala. concur. JJ., 200, 53 So. 175.’” Pfaffman v. Case, 259 Ala. 66 So.2d GOODWYN, LIVINGSTON, J., and C. J., dissent. opinion We are of that the evidence of GOODWYN, (dissenting). Justice by respondents acts done on the land majority me that the seems to claim ownership period during a to further confusion lead might well years of seventeen finding sustains a procedure proper to be fol- as to respondents doubt had adverse pro- under the suit to ain lowed years more than three after 1938. There seq. et Tit. Code § visions of contradictory presented given no consideration is say because this I fact for an issue of the trial court to decide. bearing have a direct think which I testimony That court heard ore tenus and authority trial of the court to deter- respondents. decided favor of We can- to be in the mine say appealed the decree from is complainants have failed establish wrong. plainly palpably the main- warranted lands. of the peaceable possession their liti- any ended complain- bill, this holding that tenance There are cases parties, between controversy peaceable possession is essential gable ant’s original suit; that failure dismissal such a the maintenance of bill, itas cross it the brings to carried establish such in- equity special any upon controversy between litigable end not rested asserted orig- equity dependent parties; and that the dismissal of the * *" * [Emphasis original inal bill carries with it cross-bill which bill. upon special equity independent supplied.] not rested equity original of the asserted in the bill. court, supra, Robinson, Price v. 504, 506, Felts, v. See: McGowin 263 Ala. complainants did concluding that after 228; Crump Knight, Ala. 83 So.2d lands, had 593; Robinson, 34 So.2d Price v. 626, say 570]: this to [242 626, 628, 568; Grayson 242 Ala. Muckleroy, 182, 186, 217; 220 Ala. 124 So. juris- destroys the conclusion “This Buchmann Abstract & Investment Co. v. cause, and over diction of 675; Roberts, 213 520, 521, 105 So. determination unnecessary a renders Central Georgia Company Railroad to the contest any issue as Rouse, Holland pre- properly here questions These Coleman, 462, 468, 469, supplied.] [Emphasis termitted.” Powell, 408, 410, Ladd v. supra, Muckleroy, Grayson From 46; Tilley’s Equity Alabama Pleading and 182, 124 So. following 220]: Practice, [220 p. 314. “ * * * Proof of *6 Crump As said in Knight, supra v. [250 constructive, was session, or Ala. 34 So.2d : 595] equity of the the necessary sustain “In Buchmann Abstract proof & Invest- such absence bill, and in the of ment Roberts, Co. jurisdiction to without court was the 675, 676, So. it was observed: the determine title. adjudicate ” * * * supplied.] [Emphasis ‘“ * * * light In the of our for- decisions, orig- we are constrained to mer the Tit. required by As § possessory complain- the acts herein hold that alleged that bill in this case inal part indicated on the possession of the peaceable were in ants aas contest of com- pending sufficient test were and that no suit was lands destroy plainant’s possession so as to respondents (appellees), the title. peaceable thereof complain- character bill, the answering denied that the disputed, constitute it a contested or possession and ad- ants were in ’ * * * filed, one. that, the bill was mitted at the time pending the to test title. no suit was court further observed: “The 'This answer, required set as Tit. destroys the conclusion respondents’ claim forth basis of very court over the cause at its Respondents ownership then of the lands. threshold, tmnecessary and renders prayer made their answer a cross-bill with questions consideration of ownership lands court decree of the that the the issttes any constitute as to the allegation is no be in There them. These matters contest title. “peaceable possession.” réspondents were in pretermitted. here Ladd properly whole, However, taking allegations aas 408, 39 Powell Ala. su- [144 46] probably is sufficient show the cross-bill pra.’ possession. does the cross-bill Nor allegation that, determined at the time of its “When contain complainant had failed establish.
filing, there pending was no suit to test the Owen Montgomery, title. Scott, Scott v. 424, 425, Floyd 755. As said in complain- The trial court decreed “that Andress, supra [246 334]: ants are not entitled to relief on their bill “ ** * cross-bill while the But complaint as last amended and pend- * * * no suit allegation of contains the hereby same should be and is statute, yet required by the ing, as dismissed prejudice”; that “cross- considered allegation is when this complainant, Moorer, L. is the owner M. bill, ap- it light original simple” lands, subject only fee of the fact a suit was in pears that oil, gas to an Magno- mineral lease title is involved pending in which lia Company, respond- Petroleum one Owen was filed. the cross-bill ents and cross-complainants; and “that * * * Montgomery, 230 Ala. complainants none of sus- will not reason we For this any right, title, in, or interest or lien statutory bill aas tain the cross-bill on, property.” encumbrance the said real quiet title.” The decree no findings. contains factual However, appears majority from the supra, Montgomery, it In Owen v. opinion, there is showing 574, 161 said So. 817]: [230 complainants did .not have “ * * * majority opinion, session. As I read the con- cross-bill While no conclusion is reached 'the as to whether no suit allegation of tains essential cross-complainants peaceable pos- were in is to pending, yet such averment only session but they have the proceedings light viewed original bill purpose of the answered, dis- viewed and so therein complainants Since the did not estab- pending a suit in fact closes there is lish their my the title is involved. in which view, on authority cited, supra, the cases proceed- entire with the inconsistent that dismissal of original bill carried must fall of its and, pleading, ings, with it the cross-bill, as it was not based ” * ** weight. own *7 on an equity independent equity of the as- original serted in the bill, is, the stat- the reason- have could well This utory equity. Crump Knight, holding in ing the behind 596], that 393, 34 supra So.2d [250 connection, In this question the arises original carried bill dismissal of the “the whether a cross-bill alleging statutory the bill, not rested as it was it the cross requirements peaceable possession by independent of the equity upon special a cross-complainant pend- and of no suit original bill.” equity asserted ing to test the title be a can basis for relief under the In title can be words, other held that the statute. should be since it If such statutory proceeding a cross-bill requirements meets the determined in the statute, why prove the his should complainant not fails to the the cross- when complainant independent be entitled to no possession, maintain peaceable his suit and have the create, title seems involved, determined the same it would equity as if instance, it were original an For me, illogical suit? The result. obvious an- swer is that pleadings the in hold that the court should suppose case af- trial the firmatively that, show at the time complainant does not the cross- the filed, bill was consequently there was in his fact a dismisses suit then pending original brought by suit holds that the re- nevertheless bill, com- but —the plainant testing the superior title. The com- Floyd See: spondent the title. has — Andress, 305(5), appeals this court seek- So.2d then plainant re- holding. In our com- ing possession. Clearly, a review of that the the trial suppose we conclude be sustained plainant’s view not could complain- situation, and that the error court In that should be dismissed. n 4-anthas the be superior would What title. author- court basis the trial be what would holding case? disposition of the the our proceed ized to to a determination have the respondent being the does not parties (there title as between the necessarily title, not superior we would stat- independent the equity involved no supe- complainant’s title to be hold have to utory ? the equity) Even if so, we up If that would reverse setting rior? by a seek relief cross-bill should though trial remand case for a new even fail- the a would be statutory equity, the there bill, his complainant not maintain the could peaceable possession, his ure to establish posses- because he was statutory one essentials which is court Surely, ? Should the trial sion we reverse if a bill. for maintenance complain- holding the render decree due his bill complainant maintain could not superior the If do that ant title? we has his to failure to establish complainant holding we would not be estab- session, failing to respondent, prop- get though relief can even his bill could himself, lish such erly dismissed? seems to me that this maintain cross-bill. illogical
would result. Should be most reverse trial court and render Another situation deter- concerns the simply holding trial erred mination of title party when neither decreeing respondent? be in the title to the actual lands. If that should be done the effect would provides (§ 7) statute Tit. complainant su- to hold that has peaceable possession may be either “actual title, perior stat- the essence of the If constructive.” is no utory proceeding is to settle the as be- title required “peaceable posses- parties suit; tween in other the statute rests with sion” words, superior Yohn, determine which legal holder of the title. Walthall v. then, par- Necessarily as title. between Ex 705, supra; So.2d ties, superior one or the other has the Proctor, 138, 22 parte 247 Ala. hold that not have To does Bailey, 245 Ala. Brunson v.
it would
hold
Long,
Shannon
get
does. But the
cannot
273; George
E. Wood Lumber Co.
though
even
lief
decided he
So,
Williams,
if
are in sound, logical and intent, they are On Rehearing. this case. applied and should be in that we remembered It should be COLEMAN, Justice. which proceeding a dealing here with a by only virtue equity cognizable deliverance, original On the de such statute be might statute. cree appealed from was affirmed. The dis unnecessary it make be revised should opinion questions senting raised which pos- have complainant to for the not been discussed or considered in the a to maintain in order of the lands session ques To the court. consider the thereunder, quiet title suit to by tions opinion, raised dissenting complainant. See ais when the state done placed cause by applica on rehearing Too, it 7, Code Tit. Section tion of the writer before the end of the merit, a re- argued, with some be can term Ap at which decision was rendered. court, should into spondent, brought being pellees have filed a motion to strike his title determined permitted cause from the rehearing docket and have though the com- proceeding such even support filed a brief in motion. of the fails establish his plainant statute light of the possession. But brief, appellees As understand foregoing au- presently written court, acting by major- concede this it, me it seems to dealing with thorities ity may, justices, during the term at restricted purposely legislature rendered, place decision was to instances a suit maintenance of rehearing, cause on but vigorously assert complainant is where justice single that a cannot do so. test the pending to no suit session pro- broadening of be a If there is opinions indicate that the cause was statute, should ceedings under by placed rehearing justice a single by and not legislature done following cases: Alabama Company v. court. Brown, First Bank of Brantley National v. Standard authority question feel I Company, Chemical trial court to determine the title 682; Hendley First National Bank of going *9 favor of one 664, Huntsville, 667; 235 Ala. 180 So. jurisdiction of that court which should Trailmobile, Inc. Connell, 441, 268 Ala. disposed affirmatively of in case. this So.2d 364. 108 holding that a lack of The cases entry in The docket the instant case re- determine title should jurisdiction to follows: cites as Only applied overruled. or either and bar way can bench of this state this 26, 1961 Cause Placed On Rehear- “June follow in the dis- what course to know ” * * * ing, Coleman, J.
27
dismissing
complaint
because the
entry does
the bill of
Appellees say
foregoing
posses-
to
complainant’s
sufficient
showed that
the court
evidence action
disputed or
sion was not
but was
place
rehearing.
the cause on
Powell, 144
scrambling,
to wit: Ladd v.
Ala-
entry in
The
docket
corresponding
Coleman,
408,
46;
Ala.
39 So.
Holland v.
Brown, supra, found
Company
bama
128;
462,
162
Geor-
Ala.
50 So.
Central
193, re-
Docket,
72, page
Appearance
Book
gia
Rouse,
138,
R.
57 So.
v.Co.
176 Ala.
cites :
706; Buchmann
& Investment
Abstract
Docket,
675;
Rehg
Roberts,
520,
Restored
“Oct 29 1921
Co. v.
So.
213
105
Ala.
Felts,
Thomas,
504,
order
83
McGowin v.
263 Ala.
J.”
jus-
name of
Except
date and
for the
substantially the
tice,
entry is
the docket
quieting
2nd. Cases
a
where
last
cases
the other three
(cid:127)same in each of
respondent
was reversed and decree ren-
practice of
appears that
cited above.
dered
de-
dismissing the bill or so much of
application
rehearing on
a cause on
placing
quiet
cree of circuit court
as undertook
followed,
long been
justice
of a
single
title in
was eliminated from
sparingly.
followed
although it has been
decree,
because the evidence showed
complainant’s possession
or
that,
far as we
agree
so
We
the evidence failed to
show
it
modifying
reversing
.advised, no order
or
peaceable,
Robinson, 242
to wit: Price v.
by a
can be made
.a decision of
626,
568; Crump
Knight,
Ala.
statute
justice in the absence of
single
34
So.2d 593.
rehearing
apply for
providing. To
rule so
us,
or modi
not,
to reverse
seems
3rd. Cases where a decree denying re-
may
justice
not re
fy, and,
single
a
while
lief to
and dismissing bill was
term,
modify, may, during the
quiet-
verse or
reversed and a decree was rendered
apply
ing complainant’s
the court to do
so.
title because the evidence
showed that
advised,
authority
far
we are
So
possession at the commencement of the suit
apply
rehearing
justice to
single
a.
and also
title,
held the better
to wit:
case at bar has not
done in the
as was
George
Williams,
E. Wood Lumber
v.Co.
questioned
jurisdiction.
in this
before
202;
Yohn,
157 Ala.
Walthall v.
standing supports the
long
Precedent of
29
Muckleroy,
of
case do
the assertion in
Buchmann
Grayson v.
Roberts, supra;
v.
to
Worcester,
complainant
Ala.
fails
not hold
where
supra; McCaleb v.
prove
court
possession
Robinson
his
360, 363,
Price v.
140 So.
jurisdiction
without
supra; McGowin
to
supra; Crump Knight,
v.
Powell,
respondent.
Ala.
the de-
Bolling, 266
In
Felts,
Ladd
supra;
Mettee v.
appealed
by
these
this
only
cree
from and reversed
In
two
last cited Price i. quieting ents had Crabtree no title. decree in The Crump was a decree Knight, Co., supra, state- v. Alabama was to The Land respondent reversed. same ad- effect was also reversed. appears, ment far as we first so case, vised, Abstract in the Buchmann appealed The decree in Randle v. where this said: court Daughdrill, supra, a decree de- also was only respondent shown, not “The ciding complainants to were entitled right to claimed the the land. This court reversed as posses- but indicated such claim spondent possessory who had shown some to, such acts, sory as above referred peaceable pos- acts such as would defeat the brought claim of in fact complainants, session af- but this court complainant’s knowledge respondents firmed the as decree to two who agent. Wood As said [Geo E.] pro suffered a confesso to be decree Williams, supra Lumber Co. v. [157 against rendered Apparently, them. way open 202], Ala. 47 So. prove court did not regard the failure to for a contest complainants’ peaceable possession as de- light claim for- In of our thereto. stroying jurisdiction court decisions, mer are constrained to those two because the decree possessory hold in- that the acts herein them, was affirmed as to and to affirm de- a part dicated on the were cree is to hold that it is Vaughan not void. complainant’s sufficient a contest of Vaughan, 100 So.2d destroy peace- so as to Capps Norden, able character thereof and constitute it 915. disputed, a contested or one. Powell, supra Ladd v. Ala. [144 Smith, supra, Donohoo v. this court ; Crabtree v. Alabama So. Land 46] affirmed a dismissing decree the bill supra Co., 450]; [155 denying complainant. relief to supra Daugh(d)rill, Randle v. [142 162]; Smith, Donohoo v. in the Buchmann case cited do cases The complainant that a proposition support the peaceable possession his prove fails who destroys “This conclusion juris- his title declared su- to have entitled is not diction of the court over the cause at respondent, but that of the cited perior to very threshold, its and renders unneces- the title of hold that a re- do sary a questions consideration of the peaceable posses- inbe spondent shown to which constitute of the issues as to him, quieted in that the cannot sion the contest title. These matters are to render a jurisdiction decree lacks court properly pretermitted. here Ladd v. superior respondent has declaring that title. supra.” Powell, 520, 521, case itself does not Buchmann hold lacks render declaring While it is established that a shown quiet title, in a statutory bill to who fails to
prove case possession, thereby merely, his Buchmann holds fails cited, equity sustain the of his bill and the cases accord relief, prove peace- support entitled fails to the cases cited who *12 respondents interest. decree owned a mere surface possession entitled to a is not able opinion, cit- There The was no cross bill. quieting title in him. the ing supra, recognized Daughdrill, Randle v. Sullivan, 115 Ala. Adler As noted in statute, complainant the rule that under the statute, Title 582, 22 the Alabama must distinguished similar seq., from a was taken 1109 et opinion possession. states in Jersey. The procedure statute in New complainant pos- 'that actual did not show along Alabama, developed however, has session, re- that shows that the evidence in New from those followed lines different spondents possession the were in actual Jersey, appears in New Jersey. that filed, land when the the bill was and that respondent jurisdiction- where denies “the presumption possession is that one who has peaceable possession the com- by facts al possession the surface of the subsoil has * * practice plainant settled the opinion complain- also. The states: “The in- try the first that in “will ant cannot land maintain this bill as to the pre- jurisdiction stance issue of thus the question, in for the was not reason that it sented, question of the go and will not into possession mineral of the surface or the respective parties until titles of the court, when the how- bill was filed.” This decided,” question jurisdictional has been ever, proceeded to in so reverse the decree pre- so and “If the court decided issue far as adjudged complainant it owner defendant, would sented favor of the that adjudg- the minerals and render a decree court, controversy. If the be end of the ing owners, the absolute however, against found the defendant against complainant, of lands in all the * * * issue file the defendant would they which were decreed to have a mere * * * setting his affirmative pleading difficult, surface interest. It is if not im- claim, title forth his or and thereafter possible, to reconcile Vandegrift deci- proceeding would follow as above indi- peace- sion with the proposition lack Jersey practice, cated.” Under New able complainant deprives respondent’s split answer is in two. The court of to declare that “jurisdictional first tries the question” court spondent peaceable possession has a title if the result is not adverse to com- superior to complainant that of a who had plainant, the court holds a further final possession. no hearing part in which that of the answer up which sets the title of Jackson, 180 Ala. In Rucker the first time disposed noticed and Fit- of. complaint alleged com- the bill of Metropolitan Co., tichauer v. Fire Proofing pos- the land and were in plainants owned N.J.Eq. 61 A. 747. In Alabama Respondent, by his an- same. session of question complainant’s swer, the minerals and denied that claimed session, by respondent, denied if and also were in complainants owned or party of which superior title, issue There was no cross bill. The land. presented together in one trial. a decree declaring rendered court trial no title to the minerals and respondent had least two at Alabama There are property minerals were the respondent’s may indicate appeal, On complainants. the decree was superior, although the declared declaring and a decree rendered reversed “jurisdictional” support the aver- failed to the minerals the re- was in ment states: spondent. the suit commenced. cases are the two two next Those cited. a bill “The statute authorizes like this Vandegrift v. Southern Mineral Land person by any peace- filed Co., the trial lands, possession of whether able actual adjudging rendered constructive, claiming to own party neither owned the mineral and same. Where be- what the where the decree necessarily issue result should be quiets con- title in and the title, drawing to comes one of scrambling. proof is shown bur- to be with the possession, and structive *13 See: Timber Chestang title in Tensaw Land & complainant show upon den Co., Inc., ante, p. 8, bill, this rule order to maintain his for, the bill applies case, when in this do We decide that when the filed, was in no one shows, here, respondent has as it does that been Nor there ever has land. peaceable superior possession and also has would affect such actual title, a decree is ren- declaring, so which ac- The witnesses with one answer, statutory dered on a will bill and never say property has cord that be ground reversed that on the cultivated, improved; occupied, jurisdiction court lacked the de- to render that and has been a wild wood- it is may contrary cree. Anything to 109, 114, 60 So. land.” 180 Ala. Robinson, be Crump found in Price Knight, cases, disapproved or other will not lack appears complainants’ followed. Thus that peaceable of both actual and constructive deprive minerals did not appealed here decree declare granted dismissed the bill and the relief spondent had title to the minerals. prayed for in the The cross bill cross bill. unnecessary because could estoppel suggests The doctrine have their title determined the bill and on not hold why should another we reason Alexander, answer. Collier v. possession in
lack of evidence of
367; Vandegrift
Southern Min
of a decree
requires reversal
Co., supra;
eral Land
Hinds v. Federal
superior title.
has
declaring
Orleans,
Land Bank of New
arena which
Complainant has
chosen
Moreover,
tion, of an give SIMPSON, LAWSON, STAKELY and which, position equity, inconsistent JJ., MERRILL, concur. permitted not to be to assume for ought himself. LIVINGSTON, J., GOODWYN, C. overruling strike, the motion disputed question J., or scrambling concur No opinions as indicated in the presented dissent in the instant but case. GOODWYN, unnecessary, do not it is decide Because J.
GOODWYN, (dissenting). Justice holding specifically find
I no case pro- quieted
title to land can seq., et visions of Code Title “peace- not have does True, as possession” land.
able of such majority opinion,
shown although quieted
cases in which title was possession.
complainant did not have such *14 ques- jurisdictional
inBut those cases the or dis- directly
tion was not dealt hand, referred other
cussed. On the original de- dissenting
to in the hold specifically unequivocally
liverance complainant’s peaceable I the court.
goes to the those rather than
would follow these cases holding. contrary
indicating sub silentio a
LIVINGSTON, J.,C. concurs.
BEASLEY-BENNETT COMPANY, Inc. OF the COAST CHAPTER NATION-
GULF AL ELECTRICAL CONTRACTORS et ASSOCIATION al. Div. 931.
Supreme Court Alabama.
Nov.