MAYFIELD, J. —
This was a statutory bill to quiet and determine title to land. The bill contained the statutory requirements as to averments, and sought to have the respondent’s title to the land in question determined, and the complainant’s quieted, so far as the respondent’s claim was concerned. There was no cross-bill requiring the complainant to establish his title or claim; but the answer did seek to show and establish the respondent’s claim of title to the land in question. The respondent sought no affirmative relief, as it might have done. — Code, § 5445, and annotations thereto.
(1-3) The case was submitted on bill, answer* and proof, including an agreement of counsel as to certain facts upon which the equity of the bill depended. The special chancellor who heard the cause dismissed the bill, on the ground that complainant had not shown such a “peaceable possession” of the lands as the statute (section 5443 of the Code) requires to maintain the bill. In this there was error. The agreement of counsel fully and expressly supplied this proof, and of course was binding on the parties on this trial. In fact, we find no proof of any actual possession at the time of the-filing of the bill, except that of complainant. It is true that respondent was claiming title to the land, hut had no actual possession. The fact that complainant knew of this claim was no' impediment to his filing this hill. The bill was filed for the very purpose of testing the validity of this claim of title.. In fact, there would be no equity in the hill unless the defendant or some other person was denying or disputing complainant’s title. *460and was claiming or asserting title or right to the lands. It is only in such cases that the statute authorizes the filing of the bill. It is not the fact that others, or the respondent, is claiming thé land, that defeats the bill; it is only the fact that they are in possession, or that there is a scrambling possession, which defeats the bill. It is not necessary for the plaintiff, in a case like this, to prove his title, further than, to prove his peacable possession; but the bill is to test the validity of the respondent’s title, and the burden is on the respondent to prove his title. — Newell v. Manley, 173 Ala. 207, 55 South. 495; Vaughan v. Palmore, 176 Ala. 72, 57 South. 488. The respondent in this case failed to show any valid paper title, and failed to show any possession which had ripened into title, against this complainant, and, of course, the respondent could not succeed in this suit.
(4) The former proceeding between other parties to quiet title to these lands was wholly irrelevant and immaterial. It was res inter alios acta. The complainant or his privies in title were not parties ito the proceeding, and, of course, could not. be bound by such a proceeding.
It therefore follows that the special chancellor erred in dismissing the bill, and that he should have granted the relief as prayed in the bill, and as is provided for in the statute. The decree of the lower court is accordingly reversed, and one will be here renderd in aceordanc with the prayer of the bill.
Reversed and rendered.
Anderson, C. J:, and Somerville and Gardner, JJ., concur. ' '