George E. Wood Lumber Co. v. Williams

• Decision Date: 03 June 1908
• Citation: 157 Ala. 73,47 So. 202
• Parties: GEORGE E. WOOD LUMBER CO. v. WILLIAMS.
• Court: Alabama Supreme Court

47 So. 202

157 Ala. 73

GEORGE E. WOOD LUMBER CO. v. WILLIAMS.

Supreme Court of Alabama

June 3, 1908

Rehearing Denied July 3, 1908.

Appeal from Chancery Court, Geneva County; L. D. Gardner Chancellor.

Suit by the George E. Wood Lumber Company against George W. Williams to quiet title to land. From a decree for defendant complainant appeals. Reversed, and decree rendered.

W. O Mulkey, for appellant.

E. F Ellsberry, for appellee.

SIMPSON J.

The bill in this case was filed by the appellant against the appellee to quiet title under section 809 of the Code of 1896. The complainant introduced in evidence a deed from Cyrus D. Hogue, as auditor, etc., to J. T. and C. F. Morgan, conveying the land in question, and reciting a sale for taxes as the property of Thomas Morgan, the expiration of the time allowed for redemption, etc.; also a deed from C. F. and C. D. Morgan, Fannie Mann, Jennie Hewitt, and Horace Hewitt to Sandford Lumber Company; and also the proceedings in the probate court of Geneva county, by which the interests of Eula Morgan, William Henry Morgan, and the Sandford Lumber Company in said lands were sold for division, with an agreement of counsel that said Eula and William Henry Morgan were the heirs of J. T. Morgan, and that the land was purchased at said sale by the Sandford Lumber Company, followed by the deed of the commissioner appointed by the court, conveying to said Sandford Lumber Company all the right, title, and interest of Eula and William Henry Morgan in said lands, and an agreement of counsel that the complainant acquired all the right and title of the Sandford Lumber Company. The respondent showed the tax proceedings and a sale (subsequent to the auditor's deed) of the lands in question as the property of C. F. Morgan, followed by a deed to respondent. There was testimony on both sides purporting to show acts indicating possession by each party. The chancellor dismissed the bill, because the evidence, in his opinion, does not show that the complainant was in the peaceable possession of the land at the time of the filing of the bill.

In order to sustain a bill under this statute it is necessary for the complainant to show "peaceable possession" of the land at the time of the filing of the bill, and when he shows such peaceable possession he makes out a prima facie case. Adler v. Sullivan, 115 Ala. 582, 586, 22 So. 87; Kendrick v. Colyar, 143 Ala. 597, 601, 42 So. 110; Brand et al. v. U.S. Car Co., 128 Ala. 579, 583, 30 So. 60. The appellant claims that, as both parties base their rights upon the ownership of the property by C. F. Morgan, thus making him the common source of title, the deed from C. F. Morgan to the Sandford Lumber Company vested the legal title, so far as this case is concerned, and that the legal title carried with it the constructive possession. 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 So. 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 contradistinguished 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...