McMillan v. Aikin

Citation62 So. 519,182 Ala. 303
PartiesMcMILLAN et al. v. AIKIN et al.
Decision Date15 May 1913
CourtSupreme Court of Alabama

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Suit by Norma Aikin and others against B.F. McMillan, Sr., and others. From the decree, defendants appeal. Reversed and rendered.

McMillan & Grayson, of Mobile, for appellants.

Gregory L. & H.T. Smith, of Mobile, for appellees.


Complainants in the court below, appellees here, sought by their bill to clear up and settle doubts and disputes concerning land which they claimed to own, and to enjoin, pendente lite, alleged repeated trespasses by which the timber upon the land was being destroyed. It was averred that the timber constituted the chief value of the land. The chancellor, after a submission upon pleading and proof for final decree, reached the conclusion that neither the bill nor the evidence taken in support of it showed that peaceable, uncontested possession essential to relief under the statute authorizing bills to settle land titles. Being of that opinion, he properly declined to adjudicate the disputed title, leaving that to be determined by an action at law. Hamilton v. Brent Lumber Co., 127 Ala. 78, 28 So. 698; Ashurst v McKenzie, 92 Ala. 490, 9 So. 262. However, the evidence clearly established complainants' actual possession of a part of the land claimed by them for many years under bona fide color of title covering the entire tract, and, upon consideration of this and the further fact that "this was so when the defendants first entered upon the lands or obtained any conveyances thereto," he reached the conclusion that complainants' possession should be extended to the limits of their color of title, and that they were entitled to maintain their bill for an injunction until title could be determined by a suit at law. Accordingly he decreed that the preliminary injunction, which had been issued on the filing of the bill, should be continued in force for a reasonable time to allow defendants to establish their claim of title, thus putting the burden of the action at law upon the defendants.

On due consideration of the peculiar facts of this case, we think defendants have been assigned a position of unmerited disadvantage, and that the burden of the contemplated action at law should have been put upon the complainants. The parties on either side are claiming under paper titles which reach back to the time of the Spanish sovereignty in that part of the state. But their titles do not cover an identical tract of land. Their grants overlap, and the controversy relates to a tract of land common to the overlapping grants. As we read the record, the dispute is limited to an even more restricted area. Bayou Jessamine, referred to in some of the old grants as Bayou Forbeau, runs through the land common to the two colors. Complainants' actual possession has been of land north of Bayou Jessamine, while the trespasses alleged against defendants are shown in the evidence to have been south of that water. The chancellor very clearly, as his opinion shows, proceeded upon the theory that complainants' possession of the land to the north of the bayou, under color of title extending below, drew to them a possession coextensive with the color, and so he treated complainants' case as if they had proved an actual possession of the entire tract claimed by them which had endured up to the time of the filing of the bill. The necessary effect of this ruling was to put defendants in the attitude of mere trespassers.

This court has often said that, except as limited by other adverse possessions, the possession of one who holds under bona fide color of title will be extended to the limits described in his color. Many cases to that effect are cited in Marietta Co. v. Blair, 173 Ala. 524, 56 So. 131. We have also said that the possession so extended by color is actual, not constructive, to the limits of the color. Marietta Co. v. Blair, supra. That was also the language of Bailey v. Blacksher Co., 142 Ala. 257, 37 So. 827 and of some of the cases cited in Marietta Co. v. Blair, supra, and the two cases named are referred to by the chancellor as authority for his decree.

The decree properly fixed the character of complainants' standing upon the tract claimed by them north of the bayou. It may be conceded, also, that...

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10 cases
  • McMillan v. Aiken, 1 Div. 127
    • United States
    • Supreme Court of Alabama
    • November 18, 1920
    ...such actual possession commenced prior to respondent's possession of the particular land in controversy." McMillan et al. v. Aiken et al., 182 Ala. 303, 62 So. 519. Responding to this adjudication, Aiken brought ejectment, and rendition of judgment was for plaintiff, and McMillan's appeal r......
  • Aiken v. McMillan, 1 Div. 287
    • United States
    • Supreme Court of Alabama
    • October 15, 1925
    ...THOMAS, J. Several phases of this case or controversies growing out of the land and timber therefrom, are discussed in McMillan v. Aiken, 182 Ala. 303, 62 So. 519; Id., 189 Ala. 330, 66 So. 624; Id., 201 Ala. 280, 78 So. 56; Id., 205 Ala. 35, 88 So. 135. In this suit damages are claimed for......
  • Thompson v. Johnson, 1 Div. 10
    • United States
    • Supreme Court of Alabama
    • February 14, 1918
    ...but may be adequately estimated and compensated in money. Cullman Property Co. v. Hitt Lumber Co., 77 So. 574; McMillan v. Aiken, 182 Ala. 303, 62 So. 519; Lyon v. Hunt, 11 Ala. 295, 46 Am.Dec. 216. For general authorities on the subject see 27 Cent.Dig. § 105, p. 1678, "Injunctions"; 10 De......
  • Irwin v. Shoemaker, 3 Div. 445
    • United States
    • Supreme Court of Alabama
    • June 30, 1920
    ...the insistence of counsel for complainant upon this point is sufficiently answered by what was said in the case of McMillan v. Aiken, 182 Ala. 303, 62 So. 519, as follows: "It is impossible in the nature of things that contending claimants can at one and the same time be in the actual posse......
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