Smith v. Simmons, 3 Div. 89.

• Decision Date: 22 March 1934
• Docket Number: 3 Div. 89.
• Citation: 153 So. 633,228 Ala. 393
• Court: Alabama Supreme Court
• Parties: SMITH et al. v. SIMMONS.

153 So. 633

228 Ala. 393

SMITH et al. v. SIMMONS.

3 Div. 89.

Supreme Court of Alabama

March 22, 1934

Appeal from Circuit Court, Escambia County; J. D. Ratcliffe, Special Judge.

Bill in equity by John J. Smith (revived in name of B. D. Smith and others) against Lillie Simmons, and cross-bill by respondent. From a decree for cross-complainant-respondent complainants-cross-respondents appeal.

Affirmed.

Hugh M Caffey, Jr., of Brewton, for appellants.

H. C Rankin, of Brewton, for appellee.

KNIGHT Justice.

The appellee, Lillie Simmons, filed in the circuit court of Escambia county her suit, statutory ejectment, against John J. Smith, for the recovery of a small tract of land. The complaint also contained a count for forcible entry and unlawful detainer, as well as a count for trespass to the land.

The cause was, on motion of the defendant, transferred to the equity side of the docket, upon the theory that the controversy involved a disputed boundary line between the lands of the plaintiff and those of the defendant, and that the cause could, for other reasons stated in the motion, be better and more efficaciously settled and disposed of in a court of equity.

After the court had granted defendant's motion to transfer which seems not to have been resisted, the defendant, as required by sections 6491 and 6492 of the Code, filed his bill against the plaintiff in the ejectment suit, setting up the complainant's contention as to the true lines of the defendant's (Lillie Simmons') land, and of his own, and praying for the appointment of "a commission of surveyors to determine the true boundary line between the property of the complainant and defendant, giving instructions to said surveyors that they are to begin at the northwest corner of said forty acre tract, run a due east course one hundred yards, and then run in a southeasterly direction two hundred and sixty-five yards at such angle as will strike a line running two hundred and thirty-three yards due east from the west boundary of said tract," and for general relief.

The said Lillie Simmons thereupon filed her answer, making it a cross-bill, and prayed, among other things, that the court adjudge and decree the property described and sued for in her original complaint to be the property of the cross-complainant, and for general relief.

Pending the suit the complainant John J. Smith died, and the cause, by proper order, was revived in the name of the appellants, the said Benjamin D. Smith, Jennie B. Smith, and Ella Smith. No point is made that they were not the proper parties in whose names the suit should be revived.

The testimony in the cause was taken by deposition, and not ore tenus in open court before the judge of the court.

Upon submission, the special judge of the court trying the cause was of the opinion that the description of the land in the deed of W. J. Powell and wife to the respondent and cross-complainant Lillie Simmons did not "include the one acre of land, more or less, that is in dispute," but was nevertheless of the opinion that the said Lillie Simmons had acquired the legal title to the disputed strip of land by more than ten years' adverse possession thereof before any litigation about the same arose.

The court thereupon entered a decree adjudging that the strip of land in dispute was the property of the said Lillie Simmons and not the property of the complainants, and that the respondent, Lillie Simmons, was entitled to the possession of the same. The tract...