McGowin v. Felts, 3 Div. 716

• Decision Date: 03 November 1955
• Docket Number: 3 Div. 716
• Parties: Ethel B. McGOWIN et al., Exr's v. J. R. FELTS.
• Court: Alabama Supreme Court

Page 228

83 So.2d 228

263 Ala. 504

Ethel B. McGOWIN et al., Exr's v. J. R. FELTS.

3 Div. 716.

Supreme Court of Alabama.

Nov. 3, 1955.

Calvin Poole, Greenville, for appellants.

Howell P. Rogers, Greenville, for appellee.

MAYFIELD, Justice.

This is an appeal from a final decree of the Circuit Court of Butler County, in Equity. The decree is on a statutory bill to quiet title filed by appellee under the authority of Code of 1940, Title 7, Section 1109, which statute provides as follows:

'When any person is in peaceable possession of lands, whether actual or constructive, claiming to own the same, in his own right or as personal representative or guardian, and his title thereto, or any part thereof, is denied or disputed, or any other person claims or is reputed to own the same, or any part thereof, or any interest therein, or to hold any lien or encumbrance thereon, and no suit is pending to enforce or test the validity of such title, claim or encumbrance, such person or his personal representative or guardian, so in possession, may bring and maintain a suit in equity to settle the title to such lands, and to clear up all doubts or disputes concerning the same.'

In construing the foregoing act, this court has repeatedly held that in order to maintain the statutory action the proof must show a peaceable possession in the complainant, as contradistinguished from a contested, disputed or scrambling possession. Price v. Robinson, 242 Ala. 626, 7 So.2d 568 (citing 5 earlier Alabama cases). See, also, Hinds v. Federal Land Bank of New Orleans, 237 Ala. 218, 186 So. 153; Kinney v. Steiner Bros., 167 Ala. 494, 52 So. 593; Holland v. Coleman, 162 Ala. 462, 50 So. 128; Lyon v. Arndt, 142 Ala. 486, 38 So. 242.

It is also clear that to constitute a contested, disputed or scrambling possession, it is not necessary that the possession on the part of the respondent be of such character as would ripen into title. Sanford v. Alabama Power Co., 256 Ala. 280, 54 So.2d 562; Price v. Robinson, 242 Ala. 626, 7 So.2d 568; Buchmann Abstract & Investment Co. v. Roberts, 213 Ala. 520, 105 So. 675; Holland v. Coleman, supra; Crabtree v. Alabama Land Co., 155 Ala. 513, 46 So. 450; Ladd v. Powell, 144 Ala. 408, 39 So. 46.

As to what constitutes peaceable possession under the statute must be left for determination on the facts of each particular case. Webb v. Griffin, 243 Ala. 468, 10 So.2d 458; Dawsey v. Walden, 243 Ala. 93, 8 So.2d 417; Price v. Robinson, supra; Buchmann Abstract & Investment Co. v. Roberts, supra; Geo. E. Wood Lumber Co. v. Williams, 157 Ala. 73, 47 So. 202.

The land to which the complainant-appellee seeks to quiet title is a forty-acre tract of semi-wild land in Butler County, Alabama. The answer of the respondents disclaims any interest, right or title in and to the forty-acre tract other than to a seven-acre trapezoid located in the northeast corner of the said forty acres.

Appellants-respondents claim title by mesne conveyances through one Murphy; and, that they and their predecessors in title were in continuous adverse possession of the land for more than twenty years before the suit was filed.

The appellee claims to have been in possession of said lands and to have regularly assessed it for more than ten years 'before any of the appellants obtained title to the property.' Appellee also claims title through a tax deed given by the Judge of Probate of Butler County and dated May 6, 1932. The tax deed is based on a tax assessment made against 'the estate of D. L. Hawthorn', whom the evidence discloses to have been...