Vandegrift v. Southern Mineral Land Co.

• Decision Date: 25 November 1909
• Citation: 166 Ala. 312,51 So. 983
• Parties: VANDEGRIFT ET AL. v. SOUTHERN MINERAL LAND CO.
• Court: Alabama Supreme Court

51 So. 983

166 Ala. 312

VANDEGRIFT ET AL. v. SOUTHERN MINERAL LAND CO.

Supreme Court of Alabama

November 25, 1909

Rehearing Denied Feb. 26, 1910.

Appeal from Chancery Court, Shelby County; W. W. Whiteside Chancellor.

Bill by the Southern Mineral Land Company against Annie E. Vandegrift and others. From a decree for complainant, defendants appeal. Affirmed in part and reversed in part.

Smith &amp Smith, for appellants.

W. F Thetford, Jr., for appellee.

ANDERSON J.

It is well settled by the decisions of this court that under the statute authorizing a bill in equity to quiet the title to land the complainant must have the quiet and peaceable possession, actual or constructive, as distinguished from a scrambling or disputed possession. Randle v Daughdrill, 142 Ala. 490, 39 So. 162. The complainant did not show an actual possession of the land in question, but relies upon constructive possession, which the law attaches to the legal title, in the absence of an actual possession by any one else.

The evidence shows that these respondents were in the actual possession of the land when the bill was filed, holding under their ancestor, C. C. Vandegrift, and who acquired it under a mortgage from one "Thrasher," and which said mortgage purports to convey the entire estate and not the mere surface. The presumption is that one who has possession of the surface of the land has possession of the subsoil also. 1 Cyc. 994. And this presumption is fortified when he goes into possession under an instrument which attempts to convey the entire estate. It was therefore incumbent upon the complainant to show that the possession of the respondents was confined to the surface, and did not extend to the minerals, and, to do this, it has attempted to show a previous severance of the mineral from the surface, or vice versa. The deed from Lolly to the Shelby Company conveying other land, and reciting that the company had conveyed the surface right in this land to him, did not operate as a severance per se, and while it may have been an evidential fact, binding upon those holding under him, but which we need not decide, it was not conclusive, as he may have already claimed the mineral, and this may have merged the two. On the other hand, this complainant is in no position to claim that there was a severance growing out of the transaction between Lolly and the Shelby Company, as we find the Shelby Company ignoring all...