Fleming v. Moore

• Decision Date: 02 June 1899
• Citation: 26 So. 174,122 Ala. 399
• Parties: FLEMING v. MOORE.
• Court: Alabama Supreme Court

26 So. 174

122 Ala. 399

FLEMING v. MOORE.

Supreme Court of Alabama

June 2, 1899

Appeal from chancery court, Mobile county; Thomas H. Smith Chancellor.

Bill by Alfred Fleming against Annie S. Moore, under the provisions of sections 809 to 813 of the Code of 1896, to compel the determination of claims to real estate. Decree for defendant and complainant appeals. Affirmed.

The complainant averred in his bill that he was in the actual peaceable possession of the lands in controversy; that there was no suit pending to contest the validity of his claim thereto; that Annie S. Moore claimed some right or interest in said land, which claim the complainant alleged was invalid. The prayer of the bill was that the defendant be required to set forth her claim or interest in said land, and that the chancellor decree that the complainant be entitled to the same. The defendant filed her answer, in which she denied that the complainant was, at the time of filing the bill, or ever had been, in possession of the lands in controversy; and she averred that she and her husband, D. G Moore, were in possession of said lands, and had held possession for several years; that such possession was open, notorious, and exclusive. The defendant further averred in her bill that on June 25, 1888, said lands were sold for taxes by the tax collector of Baldwin county, under a decree of the probate court of said county; that at said sale R. H. Moore purchased the said land; that a deed for the same was duly executed by the probate judge to him on December 10 1891; that prior to February 23, 1897, R. H. Moore died intestate; and that on February 23, 1897, the heirs at law of said Moore executed a deed to the respondent, conveying to her said lands. It was then averred in said answer that, under his purchase at said tax sale, R. H. Moore went into possession of said lands, and held the same up to his death, and that after the death of said R. H. Moore the said lands were held by his heirs up to the date of the deed to the respondent, and that after her purchase the respondent has held the possession of said lands up to the time of the filing of the bill, claiming the same as her own. The complainant traced his title to said lands as follows: A deed of assignment from Marshall & Jones to R. T. Ervin, dated February 10, 1886, conveying said lands to said Ervin as assignee; a deed from R. T. Ervin to complainant and one Paris Benjamin, dated March 8, 1887, conveying said lands; and a deed from Paris Benjamin to complainant, dated March 10, 1898, conveying said land. It was shown that the lands were sold for taxes under an assignment against Marshall & Jones for the taxes of the year 1887. The other facts of the case, as shown by the evidence, are sufficiently stated in the opinion. On the final submission of the cause upon the pleadings and proof, the chancellor decreed that the complainant was not entitled to the relief prayed for, and ordered his bill dismissed. The complainant appeals from this decree, and assigns the rendition thereof as error.

R. T. Ervin, for appellant.

T. M. Stevens, for appellee.

DOWDELL J.

We think the weight of the testimony in this case shows the following state of facts: One R. H. Moore went into possession of the land in controversy under a tax sale some time in 1888, and subsequent thereto permitted one Louis Reese to move into and occupy a house on said land. Some time thereafter said Reese, hearing that Paris Benjamin and Alfred Fleming owned or claimed the land, sought those parties for the purpose, as he states, of buying the land from them. However, not purchasing the land, he made a rental contract with Paris Benjamin in regard to the land. This attornment by Reese to Benjamin was never brought to the knowledge of Moore or the respondent in this case, and all during this time-that is, from the time that Reese was permitted to go upon said land down to the filing of this bill-this respondent and the said R. H. Moore, under whom she claimed title, in ignorance of the transaction between Reese and Benjamin, permitted said Reese to continue on said land, considering and treating him as their tenant.

The vital question in this case, then, seems to be whether, under these facts, the complainant has acquired such a possession of the land that he can now come into a court of equity and maintain his bill under the statute. In construing a similar statute to ours, the supreme court of New Jersey, in the case of Mayor, etc., v. Lembeck, 31 N. J. Eq. 272, uses the following language: "The purpose of the act was to relieve, not persons who had the power to test the hostile claim by a direct proceeding in the usual mode, but to aid those persons whose situation afforded them no such opportunity. The inequity that was designed to be remedied grew out of the situation of a person in the...