Edwards v. Smith

• Decision Date: 16 January 1941
• Docket Number: 7 Div. 643.
• Citation: 240 Ala. 397,199 So. 811
• Parties: EDWARDS v. SMITH.
• Court: Alabama Supreme Court

199 So. 811

240 Ala. 397

EDWARDS v. SMITH.

7 Div. 643.

Supreme Court of Alabama

January 16, 1941

Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.

Bill in equity by A. D. Edwards against Hassie Smith to establish and define a disputed boundary line between adjoining lands. From a decree denying relief and dismissing the bill, complainant appeals.

Reversed and remanded.

Ross Blackmon, of Anniston, for appellant.

C. H Young, of Anniston, for appellee.

BOULDIN Justice.

Bill in equity to establish and define a disputed boundary line between adjoining lands. Code, § 6465, § 6440.

The appeal is from a final decree dismissing the bill.

The bill was filed by appellant, A. D. Edwards, individually alleging he was the owner and in possession of a quarter section of lands south of and adjoining the lands of respondent, Hassie Smith. The boundary line in dispute is the east and west line between quarter sections.

During the trial complainant filed an amendment to the bill designating, as parties complainant: "Dean Edwards and A. D. Edwards, suing as Executors of the Last Will and Testament of Walter Dean, Deceased."

Respondent filed a motion to strike this amendment on the ground that it worked an entire change of parties complainant, and makes a new cause of action. The court granted this motion, saying in his decree that the court was of opinion the amendment worked an entire change of parties.

Under our liberal system of amendments, it must now be treated as settled that a plaintiff or complainant, suing as an individual in his own right, may amend so that the suit proceed in his representative capacity. This rule has been applied in suits touching lands. Randolph v. Hubbert, 190 Ala. 610, 67 So. 416; Lucas v. Pittman, 94 Ala. 616, 10 So. 603; Ferrell v. Ross, 200 Ala. 90, 75 So. 466; Benson v. Robinson, 223 Ala. 85, 134 So. 799; Longmire v. Pilkington, 37 Ala. 296.

The state of facts upon which an executor may maintain a bill to settle a disputed boundary line, in the execution of his trust under the will, or under the general powers of a personal representative with respect to real estate, presents a different question. The motion and ruling thereon involved only the question whether the amendment worked a complete change of parties, or introduced a new cause of action. We observe this bill, as amended, alleged that these executors and those under whom they hold are the owners and have for twenty-five years been in possession of the tract of land whose boundary is now in dispute.

The pleadings present a case of disputed boundary line, wherein complainant claims to alleged division line fixed by adverse possession; and respondent claims and is extending her possession over a strip of land 15 feet wide at one end and 8 feet wide at the other, to a line south of that asserted by complainant, and asserted by respondent to be the true line between the government subdivisions.

After the ruling on the motion above treated, the cause was submitted on pleadings and proof already taken.

The evidence consisted of testimony of complainant, Edwards, taken orally before the court. It disclosed a dispute as to the boundary line between the lands of adjoining owners.

This fact constituted the equity of the bill, and entitled complainant to have the boundary line located, defined and marked on the ground, followed by decree establishing if need be, same as the adjudicated boundary line.

The theory of complainant is that the line claimed by him is the true boundary under the law of adverse possession applicable to boundary line disputes, whether it be the line between these subdivisions as per government survey or not. These interior sub...