Buchmann Abstract & Investment Co. v. Roberts

• Decision Date: 15 October 1925
• Docket Number: 1 Div. 344
• Citation: 105 So. 675,213 Ala. 520
• Parties: BUCHMANN ABSTRACT & INVESTMENT CO. v. ROBERTS.
• Court: Alabama Supreme Court

105 So. 675

213 Ala. 520

BUCHMANN ABSTRACT & INVESTMENT CO. v. ROBERTS.

1 Div. 344

Supreme Court of Alabama

October 15, 1925

Appeal from Circuit Court, Baldwin County; John D. Leigh, Judge.

Bill to quiet title by Maggie Roberts against the Buchmann Abstract &amp Investment Company. From the decree, respondent appeals. Reversed and rendered.

Hogan &amp Mitchell, of Mobile, for appellant.

Rickarby Beebe & Coley, of Mobile, for appellee.

GARDNER J.

Statutory bill to quiet title filed in April, 1916, by appellee against appellant. Section 9905 et seq., Code 1923. Under this statute this court has repeatedly held that in order to maintain the bill the proof must show a peaceable possession in the complainant as contradistinguished from a contested, disputed, or scrambling possession. Randle v. Daughrill, 142 Ala. 490, 39 So. 162; Wood Lumber Co. v. Williams, 157 Ala. 73, 47 So. 202; Ladd v. Powell, 144 Ala. 408, 39 So. 46; Cent. of Ga. R. Co. v. Rouse, 176 Ala. 138, 57 So. 706.

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 of adverse possession as would ripen into a title. Crabtree v. Ala. Land Co., 155 Ala. 513, 46 So. 450; Ladd v. Powell, supra.

As to what constitutes peaceable possession under the statute must be left for determination on the facts of each particular case. The mere fact that another denied the right of complainant to possession would not destroy the effect of a peaceable possession, such party "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." Wood Lumber Co. v. Williams, supra.

The land here involved, situated in Baldwin county, was owned by Thomas James, who died some time before his wife, Mary James, to whom he devised a life estate therein by his will which was probated in June, 1904. Complainant was a child of Mary James, Thomas James being her stepfather. Mary James died in August, 1905, while residing upon these lands. A remainder interest in some of the lands was devised to complainant, and she purchased other interests. It may be conceded complainant shows sufficient fee-simple title to disclose a peaceable constructive possession. Whitmire v. Spears, 212 Ala. 583, 103 So. 669.

Complainant was living on this land with her mother when she died, and soon thereafter moved to Chicago, Ill., where she has since resided. She requested a Mr. Cooney to look after the land "in a general way." A small portion of the land had been cultivated and she let a neighbor farm on it the year after she left. Since that time no cultivation has been attempted by any one, and after the storm of 1906, the "house fell down and rotted away." Mr. Cooney lived some distance from the place, but would go there occasionally to look after the property to see that no one was trespassing, and nothing more by way of assertion of ownership. The respondent purchased this property at a tax sale in July, 1907, the same being sold for taxes for the year 1906, receiving a tax deed therefor in July, 1909. In 1910, Mr. Buchmann, president of the respondent corporation came upon the land, placed a sign on a tree or post near the house, describing the land, and that it belonged to respondent, and warning trespassers off. At that time one W.F. Rogers lived on land adjoining, and Buchmann secured Rogers to act as respondent's agent "in looking after this land, that is to keep possession for the Buchmann Abstract and Investment Company, and to keep off trespassers," to use the language of the witness. In 1912, Buchmann was again upon the land and arranged with Rogers for the erection of a barbed wire fence around a portion thereof--estimated from three to six acres. The posts for the fence were taken from the land, which seems to have been largely woodland, and during the period here in question...