Ford v. Washington

• Citation: 288 Ala. 194,259 So.2d 226
• Decision Date: 09 March 1972
• Docket Number: 8 Div. 447
• Parties: Charity FORD v. Fred WASHINGTON et al.
• Court: Supreme Court of Alabama

Page 226

259 So.2d 226

288 Ala. 194

Charity FORD v. Fred WASHINGTON et al.

8 Div. 447.

Supreme Court of Alabama.

March 9, 1972.

Sullins & King, Huntsville, for appellant.

Smith, Johnston, Walker & Morris, and Nancy S. Gaines, Huntsville, for appellees.

BLOODWORTH, Justice.

Appellees (complainants below), trustees and deacons of the Mount Carmel Primitive Baptist Church, filed this bill of complaint against appellant Charity Ford (respondent below) seeking to quiet title to a certain tract of land located in Madison County, Alabama. From a final decree in favor of appellees, appellant appeals.

The land is described in the bill as follows:

'One acre on the right of the road going from the City of Huntsville to the Bell Factory and on the extreme West boundary of the land purchased of Mr. John K. Fariss and wife, C. C. Fariss; Also, described as follows: Beginning at the Northwest corner of Section 11, Township 3, Range 1 East, in the center of a county road; thence due South 208.7 feet to a point; thence due East 208.7 feet to a point; thence due North 208.7 feet to the center of a public road; thence due West 208.7 feet to the point of beginning, containing one acre, more or less.'

The bill alleges that complainants are the owners of this tract and are in constructive or actual peaceable possession thereof, and that respondent Charity Ford claims some right, title, interest in or encumbrance upon the same. Prior to trial, respondent Ford exercised her right under Title 7, § 1112, Code of Alabama 1940, to demand a jury trial.

Following the presentation of complainants' case, respondent moved to exclude the evidence, or in the alternative to dismiss the bill, on grounds that,

'* * * It affirmatively appears from the evidence that the complainants or anyone acting through them have not been in actual or constructive possession of the property for the last ten years immediately preceding the filing of the bill of complaint herein.'

The court overruled both motions and the case was submitted to the jury. The jury found the complainants to be 'in actual or constructive and peaceable possession' of the land in question. The court rendered a final decree declaring: complainants to be the owners in fee simple of the land, respondent to have no right, title or interest therein, and all doubts or disputes concerning the title to the land to have been resolved. It is from this decree that respondent Ford appeals. As will hereinafter appear, we have concluded that the trial court's decree should be affirmed.

The first assignment of error is addressed to the court's overruling respondent's motion to exclude the evidence. This assignment is without merit.

'* * * This court has long held that in civil cases, the trial court will not be put in error for refusing a defendant's motion to exclude the plaintiff's evidence. (Citations omitted) * * *' Nix v. Hassell, 284 Ala. 175, 223 So.2d 580 (1969).

Assignment of error No. 2 concerns the court's overruling respondent's motion to dismiss the bill of complaint. Respondent Ford insists that it affirmatively appeared from complainants' evidence that they were not in peaceable possession but that complainants and respondent had been 'scrambling' for possession of this property for many years. Thus, respondent says that failure to prove peaceable possession destroyed the jurisdiction of the court over the cause at its very threshold, and that the bill should therefore have been dismissed on motion.

Under Title 7, § 1109, Code of Alabama 1940, in order to maintain a bill to quiet title 'the complainant must have the quiet and peaceable possession, actual or constructive, of the land claimed, as distinguished from a scrambling or disputed possession.' Merchants National Bank v. Hall, 278 Ala. 319, 178 So.2d 146 (1965).

In several opinions of this court, language similar to the following has been used:

'Indeed, the failure to prove complainants' peaceable possession within the meaning of the statute destroyed the jurisdiction of the court over the cause at its very threshold and rendered unnecessary a consideration of any of the other questions in the case. * * *' Wilson v. Dorman, 271 Ala. 280, 123 So.2d 112 (1960).

See, also, Buchmann Abstract & Investment Co. v. Roberts, 213 Ala. 520, 105 So. 675 (1925); McGowin v. Felts, 263 Ala. 504, 83 So.2d 228 (1955).

However, on rehearing in Chestang v. Tensaw Land & Timber Company, 273 Ala. 8, 16, 134 So.2d 159, 166 (1960), this court reached a different conclusion, holding:

'* * * that jurisdiction of a statutory procedure is invoked by the allegations, not the proof.

'At trial, the burden is on complainant to prove his allegations. If he cannot, he fails to recover and his suit cannot be maintained. But that does not mean that the equity court suddenly lost jurisdiction to proceed any further. * * *'

The court had this to say about Wilson v. Dorman, supra, and prior cases holding otherwise:

'* * * It follows that the 'jurisdiction destroyed' statements in the cases of Buchmann Abstract & Investment Co. v. Roberts, 213 Ala. 520, 105 So. 675; Grayson v. Muckleroy, 220 Ala. 182, 124 So. 217; McCaleb v. Worchester, 224 Ala. 360, 140 So. 595; Price v. Robinson, 242 Ala. 626, 7 So.2d 568; McGowin v. Felts, 263 Ala. 504, 83 So.2d 228; Mettee v. Bolling, 266 Ala. 50, 94 So.2d 191; Hart v. Allgood, 260 Ala. 560, 72 So.2d 91; Wilson v. Dorman, 271 Ala. 280, 123 So.2d 112, should be disregarded.

'But the case of Crump v. Knight, 250 Ala. 393, 34 So.2d 593, 596, must be and it is overruled, because it was held that when complainant failed to prove possession, 'this ended any litigable controversy between the parties,' even though title was quieted in respondent by the lower court.' Chestang v. Tensaw Land & Timber Company, supra.

In Chestang, this court went on to hold that, although the court did not lose jurisdiction,

'If there is only a scrambling possession, neither complainant nor respondent has actual or constructive possession and the bill should be dismissed. * * *'

Thus, we consider whether the complainants were in 'peaceable' possession or whether their possession was 'scrambling' as insisted upon by respondent.

Complainants' title was obtained through a deed made in 1877 by Samuel Douglass and wife conveying the tract in dispute to the 'Deacons of the Baptist Church and their successors in office forever.' The Mount Carmel Primitive Baptist Church was organized in 1877. According to the testimony, it erected a church building on the property and held regular church services in that building until 1952. The Mount Carmel church was never incorporated as a non-profit corporation, but it is a recognized member of the Indian Creek Primitive Baptist Association, a corporate body, and subscribes to the by-laws, liturgy and procedure of that association. Complainants' testimony was to the effect that, after 1952, church services were discontinued in the original building but that they continued to be held in an old school building located on a two-acre tract adjoining the property in dispute. This school building was owned by the St. Bartley Primitive Baptist Church, the mother church of the Indian Creek Primitive Baptist Association. While holding services in the school building, the congregation used the one-acre tract in dispute for a parking area until, according to the testimony, 'it grew up * * * with pines and things and you couldn't.' The testimony further indicates that the last regular services of the Mount Carmel church were held in 1966, but even after that date services continued to be held 'off and on.' The last meeting of the church was held in the school house in 1969, just prior to the filing of this suit. Its purpose was to elect deacons and trustees.

Respondent obtained her title by a deed, dated December 30, 1944, made to her and her husband, Jerry Ford, by Roney and Altie Mathias. (Jerry Ford was deceased at the time of the filing of this suit.) This deed conveyed title to 32 acres, including the acre in question, but excluding the two acres on which the school building was located. All of the deeds in respondent's chain of title, dating back to 1907, conveyed the one-acre tract here in question. She has paid taxes on the entire 32-acre tract since 1944. Respondent testified that there have been no church services in the church building since she bought her tract of land; that she has used the church building for storage of lime and lumber, and that she denied permission to the church members to use the building. Respondent further testified that she has never planted crops on the one-acre tract, but that her children had played there.

In 1963 respondent stored lumber in the church building. One of complainants, John W. Laughinghouse, testified that respondent called him and asked permission to put the lumber there and that he gave her permission on behalf of the congregation. He said that the weight of the lumber subsequently caused the building to collapse. On the other hand, respondent, though admitting she called Laughinghouse, testified that she told him she was putting the lumber in the church and that if they wanted the benches in the building they would have to remove them. There was also evidence that, prior to 1967, someone posted the property with signs reading, 'Private Property--Keep Off.' In 1967, respondent refused to allow members of the church to cut some trees growing on the one-acre tract. Complainant Laughinghouse testified that the trees were not cut because 'I wasn't going to go over her feelings.' This was the first knowledge, the complainants say they had, that respondent claimed any interest in the tract.

Complainants testified that in 1969 members of the church decided to reactivate Mount Carmel Primitive Baptist Church. They met in the school house adjacent to the church grounds and elected deacons and trustees. Shortly afterward, a group composed of the newly elected...