Miller v. Gaston

• Decision Date: 19 March 1925
• Docket Number: 1 Div. 326
• Citation: 212 Ala. 519,103 So. 541
• Parties: MILLER et al. v. GASTON et al.
• Court: Alabama Supreme Court

103 So. 541

212 Ala. 519

MILLER et al. v. GASTON et al.

1 Div. 326

Supreme Court of Alabama

March 19, 1925

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Bill in equity to establish title to real estate by W.B. Gaston and another against J. Miller and others. From a decree overruling a demurrer to the bill, respondents appeal. Affirmed.

Gaillard Mahorner & Arnold, of Mobile, for appellants.

Thornton & Frazer, of Mobile, for appellees.

SOMERVILLE J.

The provisions of the act approved October 1, 1923 (Gen.Acts 1923, p. 699), known as the Grove Act, "To provide for the establishment of titles to real estate by a proceeding in rem," have been codified as article 2 of chapter 336 of the Code of 1923, comprising sections 9912 to 9928 inclusive. In the preceding chapter--sections 9905 to 9911 inclusive--the previous system of procedure for quieting titles is preserved intact. The two systems overlap as to bills of complaint by persons "in the actual peaceable possession" of the land in suit, with respect to relief against known respondents upon whom process is served, though the Grove Act requires specific allegations of the nature and source of the complainant's claim, which is not required by the previous system. But the Grove Act extends the relief to cases where no one is in the actual possession, if the complainant, or he and those under whom he claims, has held color of title and paid the taxes for 10 or more consecutive years next preceding the suit (section 9912, subds. [ b] and [e]); and also to cases where the complainant--or he and his privies in claim--has paid the taxes during the whole of such period, and no other person has paid the taxes during any part of said period, regardless of the status of actual possession (section 9912, subd. [ d]).

The bill in this case alleges that the complainants are in the actual, peaceable possession of the lands in controversy, claiming to own them by warranty deed of record, and trace their title through a chain of recorded conveyances back to the United States. It is further alleged that complainants and their privies in estate have regularly and annually assessed and paid the taxes on these lands for more than 10 years preceding the suit, and that no other person has paid the taxes on any part of the lands during said period; and, further, that none of the respondents or their predecessors in claim have ever been in the actual possession of the lands.

The bill shows that two of the respondents, Thomas H. and Eldridge G. Stallworth, are minors over 14 years of age, and that they and the respondent, Annie Stallworth Forehand, reside in Alabama at designated addresses; and that the other respondents, J. Miller and I.E. Boyett, as far as great diligence can ascertain, are residents of Mississippi, and that their addresses cannot be discovered, and that it is not known whether they are living or dead. The bill recites that it is filed under the provisions of the Grove Act, and prays for personal service on the resident respondents, and for service by publication on the known and unknown nonresident respondents, as provided by sections 9914 and 9915. The prayer for relief is that the title be decreed to be in complainants to the extent proven, with due recordation of the decree. All of the respondents have entered a general appearance by counsel, and have filed demurrers to the bill.

The principal grounds of demurrer are: (1) That the Grove Act, under which relief is sought, is unconstitutional in that it attempts to confer jurisdiction on courts of equity to try and determine disputed titles to land, without providing for a trial by jury, in violation of section 11 of the Constitution of 1901, which provides that "the right of trial by jury shall remain inviolate; (2) that the act is unconstitutional because section 4 of the act (Code 1923, § 9919), making complainant's proof of color of title and payment of taxes for 20 years next before the filing of the suit conclusive evidence of title against all persons (with several specified exceptions) who have paid no taxes on the lands, or any part of them, during such period; and (3) that the act is unconstitutional and void because of repugnancies between some of its provisions.

The constitutional guaranty of trial by jury "does not extend to causes unknown to the common law or to the statutory law as it existed at the time of the adoption of the Constitution." In re One...