Wisener v. Trapp

• Decision Date: 20 October 1927
• Docket Number: 8 Div. 952
• Citation: Wisener v. Trapp, 216 Ala. 595, 114 So. 196 (Ala. 1927)
• Parties: WISENER v. TRAPP et al.
• Court: Alabama Supreme Court

114 So. 196

216 Ala. 595

WISENER v. TRAPP et al.

8 Div. 952

Supreme Court of Alabama

October 20, 1927

Appeal from Law and Equity Court, Franklin County; B.H. Sargent Judge.

Bill in equity by D.Y. Wisener against J.W. Trapp and another and cross-bills by the respondents. From a decree dismissing the original and cross-bills, complainant appeals, and respondents cross-assign errors. Modified and affirmed.

Williams & Chenault, of Russellville, for appellant.

Key &amp Key, of Russellville, for appellees.

GARDNER J.

The bill in this cause was filed by appellant against J.W. Trapp and J.F. Lauderdale, and as last amended was one to quiet title under the statute. Section 9905 et seq., Code of 1923.

Complainant with respondents and a number of others, organized an unincorporated association known as the Farmers' Union Warehouse Company. A warehouse was purchased by the company in the town of Phil Campbell. The company became indebted beyond its capacity to pay. Complainant, with respondents and one other stockholder (as they were so designated), were indorsers on the note which was in an amount equal to the value of the warehouse. There were two or three hundred members or stockholders. At a meeting called for the purpose of considering the best course to pursue as to this indebtedness, a resolution was passed that the directors execute a deed to this warehouse to complainant in consideration of his payment of the company's indebtedness. At this meeting the number of members present are estimated between thirty and fifty. Respondent Lauderdale was present and acting as secretary. Respondent Trapp is shown to have had knowledge thereof, but does not seem to have been present. Complainant paid the debt due by the company and took possession of the warehouse, repairing the same and paying the taxes due thereon, claiming the property as his own. No deed was ever executed, but the evidence shows a continuous adverse possession of the property by complainant for more than ten years under claim of ownership.

The evidence discloses that such adverse possession under claim of ownership was known to these respondents, and was such as to operate as a disseisin of them as co-tenants and defeat their title. Winsett v. Winsett, 203 Ala. 373, 83 So. 117; Kidd v. Borum, 181 Ala. 144, 61 So. 100, Ann.Cas.1915C, 1226; Miller v. Vizard Inv. Co., 195 Ala. 467, 70 So. 639; Ala. F. & I. Co. v. Broadhead, 210 Ala. 545, 98 So. 789.

In cases of bills to quiet title under the above-cited statute, complainant makes out a prima facie case for relief by showing peaceable possession and that no suit was pending at the time of the filing of the bill to test defendants' claim of title, and upon such proof is entitled to a decree adjudging defendants' claim invalid unless he establishes a good title. Burkett v. Newell, 212 Ala. 183, 101 So. 836; McDermond v. Hamby, 205 Ala. 522, 88 So. 848.

The evidence very clearly establishes the peaceable possession by complainant, and, as above indicated, complainant would have been entitled to relief against these respondents, but for a failure of proof that no suit was pending at the time the bill was filed testing respondents' claim. This is essential to be established in cases of this character. Parker v. Boutwell, 119 Ala. 297, 24 So. 860; Shannon v. Long, 180 Ala. 128, 60 So. 273. The averment as to this essential...