Irwin v. Shoemaker

• Decision Date: 12 February 1920
• Docket Number: 3 Div. 416
• Citation: 204 Ala. 89,85 So. 269
• Parties: IRWIN v. SHOEMAKER et al.
• Court: Alabama Supreme Court

85 So. 269

204 Ala. 89

IRWIN v. SHOEMAKER et al.

3 Div. 416

Supreme Court of Alabama

February 12, 1920

Appeal from Circuit Court, Conecuh County; A.E. Gamble, Judge.

Bill by Frances I. Irwin against J.M. Shoemaker and others to quiet title to land and restrain trespass. From a decree dissolving a temporary injunction, complainant appeals. Affirmed.

Hybart Hare & Ratcliffe, of Monroeville, for appellant.

Hamilton & Page and J.S. Stearns, all of Evergreen, for appellees.

BROWN J.

This bill is filed by Frances I. Irwin against J.M. Shoemaker and others to compel the determination of claims to the lands described in the bill and to quiet the title of the complainant thereto, and as incidental relief to restrain the respondents from entering upon the lands and taking the timber growing thereon.

While the bill avers that the complainant is the owner of the lands "and in the peaceable possession thereof," it also avers that--

"The respondents are reputed to claim some right, title or interest in said described lands under an instrument in writing which is in words and figures as follows: 'Know all men by these presents, that for and in consideration of $2,000 to be paid as hereinafter provided we have granted bargained, and sold to John M. Shoemaker all the merchantable timber, except oak and ash, on the following lands [Description of lands omitted.] The said J.M. Shoemaker is to have a lease on the mill side [site] and all outbuildings for a term of five years, and is to have five years in which to cut and remove timber; but in the event he should want a longer time to cut said timber, or any other additional timber which he may buy, then in that event he shall have an additional time of two years in which to occupy the mill side [site]. The said John M. Shoemaker, in consideration of the above, is to pay $50 per month from May 1, 1913, until the $2,000 is paid. [ Signed] Frances I. Irwin. Richard F. Irwin. John M. Shoemaker.' *** That the respondents have repeatedly and continuously, since said May 1, 1913, entered upon complainant's said lands and greatly damaged the same, by cutting and removing large quantities of timber of great value, and are continuing to trespass upon said lands, and are threatening to cut and remove such as still remains on said lands; the said remaining timber being of great value."

Construing these averments most strongly against the pleader, as must be done on demurrer, they at best show that the complainant's possession is "only a scrambling possession," and the demurrer taking this point was properly sustained. White et al. v. Cotner, 170 Ala. 324, 54 So. 114; Cent. of Ga. Ry. Co. v. Rouse, 176 Ala. 138, 57 So. 706...