Kellar v. Bullington

• Decision Date: 27 April 1893
• Citation: 14 So. 466,101 Ala. 267
• Parties: KELLAR ET AL. v. BULLINGTON.
• Court: Alabama Supreme Court

14 So. 466

101 Ala. 267

KELLAR ET AL. v. BULLINGTON.

Supreme Court of Alabama

April 27, 1893

Appeal from chancery court, Colbert county; Thomas Cobbs Chancellor.

Action by William H. Bullington against A. H. Kellar and another to enjoin defendants from removing stone from certain land, and to recover damages for stone removed. From a judgment for plaintiff, defendants appeal. Reversed.

L. B Cooper and Roulhal & Nathan, for appellants.

J. B Moore, for appellee.

HEAD J.

On March 17, 1884, Arthur H. Kellar purchased at the judicial sale of the lands of the estate of F. C. Vinson, deceased made by R. B. Lindsey, the administrator, several hundred acres of land in Colbert county, Ala., and, after report and confirmation, and payment of the purchase money, received, on the 26th day of September, 1887, the deed of the administrator thereto. This sale and deed included the N.W. 1/4 of the S.E. 1/4 of section 23, township 5, range 11. The intestate, Vinson, had no title to this 40 acres, but the same were public lands, the title of the government having never been divested. It is not shown when the report of this sale was made to the probate court by the administrator, and there is no evidence to show that Kellar acquired any color of title, until the execution of the administrator's deed on the 26th day of September, 1887, which was several months after the filing of the bill in this case; but it is a fact, established by the pleadings and proofs without controversy, that from the time of his purchase, in 1884, until the complainant's (Bullington's) entry, hereinafter referred to, and for a while thereafter, he was ignorant of his want of title, believed he had a good title, and claimed the said 40 acres as his own under said purchase, and that his possession and acts of enjoyment hereinafter mentioned were, in fact, adverse to the world, under claim of ownership by virtue of his said purchase. Kellar owned a large body of lands adjacent and contiguous to the above 40. In the fall of 1886, he verbally sold to Hull a half interest in his lands. They contained valuable stone, suitable for quarrying, and in November, 1886, stating the case most strongly for the complainant, by joint act and arrangement they, Kellar and Hull, by themselves and employes, went upon said 40 acres, believing the same to be their property under Kellar's purchase at said judicial sale, and by his contract to sell a half interest to Hull, and began the work of opening a quarry. They erected the necessary buildings, did the grading for a side track to the railroad, opened the quarry, and entered upon the work of quarrying stone, expending about $500 in the preparatory work. This possession was continued, and business prosecuted without abatement, under the same claim of right and ownership, taking out and disposing of stone daily, until the service of the injunction in this cause on June 15, 1887. With this possession and enjoyment of the premises and claim of ownership in force, the complainant, Bullington, on the 1st day of February, 1887, entered, at the land office at Huntsville, as a homestead, the N. 1/2 of S.E. 1/4 of said section 23, township 5, range 11 W., which, it is seen, included the said 40 acres. The only averment in the bill of possession taken by complainant under this entry is in the following language: "Soon after his said entry thereof he built a dwelling house upon said lands, and moved his family into the same, and ever since thereof your orator and his family have resided on said lands, and are now residing thereon, and occupying said lands as a homestead." His only proof of his possession is his testimony, as follows: "After I entered the land, the 1st February, I moved on it the 11th day of March, 1887, and have lived on it ever since. I live about one-quarter of a mile from said quarry." A few days after the entry, complainant notified Kellar and Hull of the same, and not to get any more stone off the land. They refused to submit to this demand, but continued working the quarry and claiming the land as before, and Kellar instituted, before the proper tribunal, a contest of the validity of the entry, and prosecuted the contest to its final determination is 1891, when the validity of the entry was adjudged. While the complainant and respondents were thus arrayed against each other, each in the assertion of title to the land, the complainant, on June 14, 1887, filed this bill to enjoin the further commission of the alleged trespasses, and for an account and recovery of the value of the stone taken. The chancellor granted the relief prayed, and from his decree the respondents appeal.

It is clear the averment of the bill and the proof thereunder taken in connection with other averments and proof, touching the possession complainant took after his entry do not show that the actual adverse possession by respondents of the land they held was displaced or disturbed by the possession which complainant took. The bill is not filed, concurrently with a real action at law to try the conflicting claims of title, in order to prevent the destruction of the estate, or irreparable waste and damage pending such a trial at law. In fact there is no averment or proof of facts from which it can be deduced that a virtual destruction of the estate, or injury thereto for which adequate redress cannot be obtained in an action at law, would follow the continued possession and...