Kinney v. Steiner Bros.

• Court: Alabama Supreme Court
• Writing for the Court: ANDERSON, J.
• Citation: Kinney v. Steiner Bros., 167 Ala. 494, 52 So. 593 (Ala. 1910)
• Decision Date: 12 May 1910
• Parties: KINNEY v. STEINER BROS.

52 So. 593

167 Ala. 494

KINNEY v. STEINER BROS.

Supreme Court of Alabama

May 12, 1910

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Bill by Steiner Bros. against F. H. Kinney to quiet title to certain lands. From a decree for complainants, respondent appeals. Reversed and rendered.

Stallings & Drennen, for appellant.

A Latady, for appellees.

ANDERSON J.

To maintain a bill under the statute for the determination of claims to real estate and to quiet title thereto, it is necessary for the complainants to aver and prove that at the time of the institution of the suit the complainants' possession of the land involved was peaceable, as contradistinguished from disputed or contested, possession and that it was under claim of ownership. Lyon v Arndt, 142 Ala. 486, 38 So. 242; Randle v Daughdrill, 142 Ala. 490, 39 So. 162. We think the complainants' possession was, at best, a mere scrambling one, attempted for the purpose of making the respondent the actor in the courts. It was undisputed that the land is wild or timber land, that respondent had it inclosed with a barb-wire fence, and to all intents and purposes was in possession; and complainants' counsel admitted as a witness that he advised the planting of oats on the land for the purpose of compelling the proprietor of the fence to resort to an action of ejectment. The effort made to suddenly transform this forest, or densely timbered piece of land, into a flourishing oat field in so short a time, did not, we think, materialize to the extent of terminating the respondent's possession. The oats may have been sown, but there was no proof that they came up or were harvested. Indeed, the weight of evidence is that the planting was a mere sham for the purpose of dispossessing the respondent, and that what was done gave no signs that the...