Chestang v. Tensaw Land & Timber Company , 273 Ala. 8 ( 1960 )

GOODWYN, Justice.

Appellant, Clement S. Chestang, filed in the circuit court of Mobile County, in equity, pursuant to Code 1940, Tit. 7, § 1109 et seq., a bill to quiet title to certain described lands located in said county. The bill alleges that complainant is “in peaceable possession” of the lands, that the respondent, Tensaw Land & Timber Company, Inc., “claims or is reputed to claim some right, title or interest in, or encumbrance upon, all or a portion” of said lands, and that “no suit is pending to enforce or test the validity of such title, claim or encumbrance.” The bill also calls upon the respondent, pursuant to § 1110, Tit. 7, “to set forth and specify its title, claim, interest or encumbrance upon said land and how or by what instruments the same is derived and created.”

Respondent’s demurrer to the bill being overruled, it answered the bill, denying only that complainant was in peaceable possession of the lands and setting forth the basis of its interest therein as follows, to-wit:

“Respondent claims an interest in the real property acquired by Everette Boy-kin about forty (40) years ago from the Exchange Land Company for the Southeast Quarter and the Southeast Quarter of the Southwest Quarter of Section 26, Township 1 North, Range 1 West. This Respondent alleges that it had been continuously paying taxes on said land in its name or in its predecessors in title’s name for more than ten (10) years next preceding the date that the bill was filed in this case and has express rights of possession thereof.”

There was no cross-bill.

A good part of the evidence was taken orally before the trial court. Accordingly, its finding has the effect of a jury’s verdict and will not be disturbed unless plainly and palpably wrong. King v. King, 269 Ala. 468, 114 So.2d 145; Stewart v. Childress, 269 Ala. 87, 111 So.2d 8; Espey v. State ex rel. Nicol, 268 Ala. 109, 105 So.2d 93; Donohoo v. Smith, 207 Ala. 296, 92 So. 455.

The trial court held that complainant failed to prove his peaceable possession of the lands and denied him relief. However, the decree went further, holding that “respondent has established his ownership of, and right of possession in and to the lands as described in the bill of complaint,” and “is the owner in fee simple thereof, and that complainant Clement S. Chestang does not have any right, title or interest therein nor the right to the possession of any part thereof.”

Thus, the first question presented is whether the trial court erred in its holding that complainant had not established his peaceable possession of the lands. If that holding is correct, which we have concluded to be the case, then the next question is whether the trial court, under the pleadings, could go further and decree the relief granted to respondent. Our view is that the court erred in this respect.

In McGowin v. Felts, 263 Ala. 504, 505-506, 83 So.2d 228, 229, it was said:

“In construing the foregoing act [§ 1109, Tit. 7, Code 1940], this court has repeatedly held that in order to maintain the statutory action the proof must show a peaceable possession in the complainant, as contradistinguished from a contested, disputed or scrambling possession. Price v. Robinson, 242 Ala. 626, 7 So.2d 568 (citing 5 earlier Alabama cases). See, also, Hinds v. Federal Land Bank of New Orleans, 237 Ala. 218, 186 So. 153; Kinney v. Steiner Bros., 167 Ala. 494, 52 So. 593; Holland v. Coleman, 162 Ala. 462, 50 So. 128; Lyon v. Arndt, 142 Ala. 486, 38 So. 242.

“It is also clear that to constitute a contested, disputed or scrambling possession, it is not necessary that the possession on the part of the respondent be of such character as would ripen into title. Sanford v. Alabama Power Co., 256 Ala. 280, 54 So.2d 562; Price v. Robinson, 242 Ala. 626, 7 So.2d 568; Buchmann Abstract & Investment Co. v. Roberts, 213 Ala. 520, 105 So. 675; Holland v. Coleman, supra; Crabtree v. Alabama Land Co., 155 Ala. 513, 46 So. 450; Ladd v. Powell, 144 Ala. 408, 39 So. 46.

“As to what constitutes peaceable possession under the statute must be left for determination on the facts of each particular case. Webb v. Griffin, 243 Ala. 468, 10 So.2d 458; Dawsey v. Walden, 243 Ala. 93, 8 So.2d 417; Price v. Robinson, supra; Buchmann Abstract & Investment Co. v. Roberts, supra; Geo. E. Wood Lumber Co. v. Williams, 157 Ala. 73, 47 So. 202.”

The opinion in the case of George E. Wood Lumber Co. v. Williams, 157 Ala. 73, 76-78, 47 So. 202, 203, written by the elder Justice Simpson, contains an excellent discussion and statement of the meaning of the term “peaceable possession,” as used in § 1109, Tit. 7. As there said:

“ * * * The statute authorizes this proceeding by a party, in possession, ‘whether actual or constructive/ and it is true that, ‘when one has a legal estate in fee in land, he has the constructive possession, unless there is an actual possession in some one else/' Southern Ry. Co. v. Hall, 145 Ala. 227„ 41 South. 136.

“But the statute requires that such possession shall be ‘peaceable.’ So the question arises, what is peaceable possession? It cannot mean that it is peaceable unless there be some legal proceeding in progress to test the title or right to the possession; for the object of the statute is to allow the party who is in possession, and who cannot force the adversary claimant to institute any proceeding, to bring said party into court in order to determine whether he has any just claim to the property. The word ‘peaceable/ then, refers to the character of his possession. So long as his possession is so clear that no one is denying the fact of his actual or constructive possession, it is peaceable, although some other person may be denying his right to possession. Consequently the cases above cited, and others, have held that the possession must be peaceable, as contra-distinguished from a contested, disputed, or scrambling possession. In a case in which the complainants showed that they were the heirs of one S., who. had the title to certain wild lands, and consequently had the constructive possession, and the respondent showed testimony tending to prove that she had a tax deed for taxes delinquent by said , '' S., that she had paid taxes, kept trespassers off, cut tan bark on the land, and posted notices warning people not to trespass, and objected to persons cutting crossties, on the land, this court said that these acts ‘were sufficient to show that complaints [sic] did not have the peaceable possession of the land.’ — Randle et al. v. Daughdrill, et al., 142 Ala. 490, 492, 39 South. 162 * * *. See, also, Lyon v. Arndt, 142 Ala. 486, 38 South. 242.

“It is difficult to lay down any definite rule as to what is a peaceable possession. While, as before stated, it is not necessary that'there should be any proceedings in progress to test the right of possession, yet, on the other hand, it would not do to state that the mere fact that another denied the right of possession would render the possession not peaceable. The party denying the right of possession in the complainant must do something indicating that he claims to be in possession himself, thus opening the way for the party in possession to institute some proceeding against him and thus test their respective rights. Thus, in the case just cited, the action of trespass, trespass after warning, or possibly injunctive relief, was open to the complainant. This must be true, or the purpose of the statute would fail, to the extent that a party in possession, not being able to force the other party to litigate, and not being able to institute . any proceedings himself, would be without remedy. * * * ”

Applying the foregoing principles to the' case before us, we are clearly of the opinion that there was ample evidence to support the trial court’s finding that complainant did not have the required "peaceable possession” of the lands. We certainly cannot say that such finding was plainly and palpably wrong. Since it seems very probable that the parties’ rights in the lands will be litigated further, we forego discussing the evidence. See Holderfield v. Deen, 269 Ala. 260, 262, 112 So.2d 448; Frost v. Johnson, 256 Ala. 383, 386-387, 54 So.2d 897; German-American Wholesale Optical Co. v. Rosen, 233 Ala. 105, 106, 170 So. 211; Parker v. Hayes Lumber Co., 221 Ala. 73, 74, 127 So. 504.

This brings us to the real question in the case: Did the trial court, after finding that complainant was not in peaceable possession of the lands, have authority, under the pleadings, to go further and render the decree establishing ownership of the lands in respondent? We think not. See McGowin v. Felts, 263 Ala. 504, 506, 83 So.2d 228, supra; Crump v. Knight, 250 Ala. 393, 396, 34 So.2d 593; Price v. Robinson, 242 Ala. 626, 628, 7 So.2d 568; Grayson v. Muckleroy, 220 Ala. 182, 186, 124 So. 217; Buchmann Abstract & Investment Co. v. Roberts, 213 Ala. 520, 521, 105 So. 675; Central of Georgia R. Co. v. Rouse, 176 Ala. 138, 57 So. 706; Holland v. Coleman, 162 Ala. 462, 468, 469, 50 So. 128; Ladd v. Powell, 144 Ala. 408, 410, 39 So. 46; Tilley’s Alabama Equity Pleading and Practice, § 237, p. 314.

As said in Crump v. Knight, supra [250 Ala. 393, 34 So.2d 595]:

“In Buchmann Abstract & Investment Co. v. Roberts, 213 Ala. 520, 105 So. 675, 676, it was observed:

“ * • * In the light of our former decisions, we are constrained to hold that the possessory acts herein indicated on the part of respondent were sufficient as a contest of complainant’s possession so as to destroy the peaceable character thereof and constitute it a disputed, contested or scrambling one. * * * ’

“The court further observed: ‘This conclusion destroys 1:he jurisdiction of the court over the cause at its very threshold and renders unnecessary a consideration of the questions which constitute any of the issues as to the contest of title. These matters are properly here pretermitted. Ladd v. Powell [144 Ala. 408, 39 So. 46] supra.’

“When the court determined that the complainant had failed to establish such possession as warranted the maintenance of his bill, this ended any litigable controversy between the parties, and the dismissal of the original bill carried with it the cross bill, as it was not rested upon any special equity independent of the equity asserted in the original bill. * * * ”

In Price v. Robinson, supra, this court [242 Ala. 626, 7 So.2d 570], after concluding that complainants did not have peaceable possession of the lands, had this to say:

“This conclusion destroys the jurisdiction of the court over the cause, and renders unnecessary a determination of any issue as to the contest of title. These questions are properly here pretermitted.”

From Grayson v. Muckleroy, supra [220 Ala. 182, 124 So. 220], is the following:

“ * * * Proof of peaceable possession, actual or constructive, was necessary to sustain the equity of the . bill, and in the absence of such proof the court was without jurisdiction to adjudicate and determine the title. * * * »

So much of the decree as undertakes to establish in respondent the ownership in fee simple of, and the right of possession in and to, the lands as described in the bill of complaint, is eliminated therefrom. As so corrected the decree will be affirmed without prejudice. Crump v. Knight, supra.

Corrected and affirmed.

LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur.