McCaleb v. Worcester

• Citation: 140 So. 595,224 Ala. 360
• Decision Date: 17 March 1932
• Docket Number: 1 Div. 653.
• Parties: MCCALEB v. WORCESTER ET AL.
• Court: Supreme Court of Alabama

140 So. 595

224 Ala. 360

MCCALEB v. WORCESTER ET AL.

1 Div. 653.

Supreme Court of Alabama

March 17, 1932

Appeal from Circuit Court, Baldwin County; F. W. Hare, Judge.

Bill to quiet title by Warren W. Worcester, individually and as executor of the will of George H. Hoyle, deceased, and another, against Thomas S. McCaleb and others, with a cross-bill by respondent McCaleb. From a decree for complainants, respondent (cross-complainant) McCaleb appeals.

Reversed and rendered in part, and in part modified and affirmed.

The facts are stated by BROWN, J.

Jesse F. Hogan, of Mobile, for appellant.

B. F McMillan, Jr., and Gaillard & Gaillard, all of Mobile, for appellees.

BROWN J.

We are not of opinion that the court erred in overruling the motion to dismiss the bill. The statute and rule of practice authorize a revivor, on motion before the register or the court, by and in the name of the complainant's "successor or party in interest," without a bill of revivor. Code 1923, § 6552; Rule 101, Chancery Practice, vol. 4, Code of 1923, p. 938. (Italics supplied.)

The matter in controversy here is the title to the property, and the party in interest, within the meaning of the statute and rule of practice, was the party alleged to have the title. Sims, Ch. Pr. § 620; Rhea v. Tucker, 56 Ala. 450.

The statute, section 9905, Code of 1923, authorized the filing of the bill by the original complainant in his representative capacity, yet by so doing he was asserting and seeking to protect the title that resided in the testator up to the time of his death, and the parties in whose names and behalf the bill was revived, taking the averments of the bill as true succeeded by the death of the original complainant to the title which he was seeking to protect in his representative capacity.

The fact that the original complainant had statutory authority for proceeding in his representative capacity differentiates this case from that of Bowie v. Minter, 2 Ala. 412.

The complainant made no effort to show that Warren W. Worcester in his representative capacity, his cocomplainants, or his successors, ever had actual possession of the land. They rest their case solely on the contention that they have established a good paper title to the land which draws to it constructive possession, and that they have shown that no one was in actual possession.

One fault in this contention is that the bill as last amended alleges that complainants "are in the actual peaceable possession claiming to own" said land. In Montgomery v. Spears et al., 218 Ala. 160, 117 So 753, cited by appellee, and Whitmire v. Spears et al., 212 Ala. 583, 103 So. 668, upon which the first cited case is rested, the complainant merely alleged peaceable possession and ownership, not actual possession-pedis possessio.

In Cost v. Teague et al., 215 Ala. 111, 110 So. 17, the complainant alleged and proved actual possession in himself and those under whom he claimed.

King Lumber Co. et al. v. Spragner et al., 176 Ala. 564, 58 So. 920, was not a statutory bill, but was a bill to remove a cloud from title, and alleged that complainants owned and were in possession of the property.

Another fault in the appellees' contention is that they failed to show that no one was in the actual possession of the property. The evidence goes to show that the land in question was unfenced, cut-over land; that the respondent and those under whom he claimed had at least color of title; had been exercising acts of ownership over the property for some time before the bill was filed, by building a tent or shack on the property, sinking a well, keeping off trespassers, occupying the same by tenant or agent, and clearing part of the land, and assessing and paying taxes thereon. The evidence further shows that the complainants and those under whom they claim had not assessed the land for taxes for more than twenty years, and that the most they had ever done-assuming that this was done by them or their authority-was to put up signs of warning against trespassers, and these were immediately taken down by the respondent's agent. In short, the complainants have failed to prove the averments of the bill essential to its equity and to give the court jurisdiction to settle and determine the title. Buchmann Abstract & Investment Co. v. Roberts, 213 Ala. 520, 105 So. 675; Southern Railway Co. v. Hall, 145 Ala. 224, 41 So. 135.

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