Yauger v. Taylor

• Decision Date: 24 May 1928
• Docket Number: 2 Div. 916
• Citation: 218 Ala. 235,118 So. 271
• Parties: YAUGER v. TAYLOR.
• Court: Alabama Supreme Court

118 So. 271

218 Ala. 235

YAUGER v. TAYLOR.

2 Div. 916

Supreme Court of Alabama

May 24, 1928

Rehearing Denied Oct. 25, 1928

Appeal from Circuit Court, Perry County; Thomas E. Knight, Judge.

Bill in equity by Val Taylor against A.J. Yauger to determine the boundary line between coterminous lands. From a decree granting relief, defendant appeals. Affirmed.

George Pegram, of Linden, for appellant.

Bruce K. Craig, of Selma, and A.W. Stewart, of Marion, for appellee.

BOULDIN J.

The settlement of uncertain or disputed boundaries by proceedings at law, or in equity, has long presented difficult questions to the bar as well as the courts of this state.

Cases involving conveyances by government subdivision have been most numerous.

The passing away of the marks of the original surveys by process of time, and clearing up the country, have contributed to uncertainty. Surveys made by course and distance only, as found in the field notes, sometimes relying on traditional starting points, often conflict and add confusion. Ancient boundaries, or traditional corners, set by later surveys often become of major importance in ascertaining where the original lines were in fact apart from any question of adverse possession. Ford v. Bradford, 212 Ala. 515 103 So. 549.

As early as McQueen v. Lampley, 74 Ala. 409, Judge Stone pointed out the difficulty of settling a disputed boundary line by ejectment where muniments of title call for government subdivision. If the plaintiff sues by the description in his deed, and defendant pleads not guilty, he admits possession of lands covered by plaintiff's deed and not his own. If he disclaims the possession of the lands sued for, he cuts himself off from proof of adverse possession, whether it arise by an agreed survey acquiesced in by both parties, by a line pointed out to him, when he purchased, and to which he has held without question for the statutory period, or by any other form of adverse possession recognized by law. On a disclaimer the plaintiff may elect to take judgment without cost. In such event there is no adjudication of the location of the true line, and if the sheriff be sent to put plaintiff in possession, he has no aid from the judgment of the court. Said Judge Stone:

"We submit if there should not be some change of the statute on this subject. Should not a defendant, in a case like the present, have equal right with the plaintiff, who brings him into court, to so plead as to put the question of boundary in issue, and have the jury pass upon it?"

The Code Committee of 1907, by amendment of section 3843 provided that in connection with a disclaimer the defendant may suggest that the suit arises over a disputed boundary line and thus cause the true boundary to be adjudicated and marked. Some difficulty under that statute was pointed out by Anderson, C.J., in Howard v. Brannan, 188 Ala. 532, 66 So. 433. A further amendment appears in the Code of 1923, § 7457. Is this not a legislative recognition upon judicial suggestion that the remedy at law was theretofore inadequate in such cases?

We turn now to the original jurisdiction in equity to settle uncertain and disputed boundary lines. In Ashurst v. McKenzie, 92 Ala. 484, 9 So. 262, it was said:

"The jurisdiction of chancery to establish disputed boundaries is ancient and well defined. It does not arise upon any mere dispute as to the location of the boundary between adjacent parcels of land, or even upon a mere dispute as to such location of a confused or obliterated line. There must in addition to all this be some special ground of equitable interposition. Such grounds, it is said, may be predicated of the fraud or neglect of duty of the defendant, whereby the confusion and obliteration has resulted; and where the line is marked upon the surface of the ground, and is plowed over and obliterated for the purposes of a fraudulent insistence that it is elsewhere than at its true location; or by a person having at the time possession of his own and the adjoining parcel, and thus being under a duty of maintaining and preserving the demarkation of the two tracts. 3 Pom.Eq.Jur. 1384-5; Wake v. Conyers, 1 Eden Ch. 227; Rous v. Baker, 4 Town P.C. 660; Speer v. Crowter, 2 Merio, 410-17; Norris' Appeal, 64 Pa. 275; Hill v. Proctor, 10 W.Va. 59; Wetherbee v. Dunne, 36 Cal. 249."

Speaking again of this ancient jurisdiction in Guice v. Barr, 130 Ala. 570, 30 So. 563, it was declared the jurisdiction will be exercised where the line has been obliterated or confused by act of the defendant in fraud of complainant's rights. Where respondent had sold the land to complainant, failed to point out the line, which had become obliterated, and interfered with a survey of the line by complainant, this was held such fraud as warranted equitable relief. Hays v. Bouchelle, 147 Ala. 212, 41 So. 518, 119 Am.St.Rep. 64.

In Turner v. De Priest, 205 Ala. 313, 87 So. 370, an agreement fixing the line followed by possession and acquiescence for 30 years, and the death of one of the parties, was held to present an estoppel in equity. The controlling factor in fixing the line was possession under the circumstances disclosed.

Statutory provision touching equity jurisdiction in such cases appeared as subdivision 5, section 3052, Code of 1907, reading:

"The powers and jurisdiction of courts of chancery extend-- ***

"5. To establish and define uncertain or disputed boundary lines."

The first case to come before this court under this statute, we believe, was Davis v. Grant, 173 Ala. 4, 55 So. 210. Without discussion the court considered and affirmed a decree on the express ground that a boundary line had been agreed upon and perfected by adverse possession.

In later cases, such as Billups v. Gilbert, 195 Ala. 518, 70 So. 145, Chappelear v. McWhorter, 204 Ala. 269, 85 So. 386, and Harley v. Chandler, 204 Ala. 207, 85 So. 546, it was recognized that a bill following the statute was sufficient to confer jurisdiction in the absence of demurrer.

The rule is well established that if a court has no jurisdiction of the subject-matter, its proceedings are void. The parties cannot by agreement confer jurisdiction in such case. An appeal from such decree will be dismissed. The above decisions cannot be reconciled with the view that a court of equity has no jurisdiction of the subject-matter of settling disputed boundaries; that its jurisdiction must rest alone on an independent equity.

These cases are in entire harmony with the rule that where equity has general jurisdiction over the subject-matter, a defect in the bill, in failing to aver such details as good pleading requires to invoke such jurisdiction, must be raised by demurrer.

In Goodman v. Carroll, 205 Ala. 305, 87 So. 368, on demurrer, it was held the statute of 1907 was merely declaratory of the common law, that a bill must still aver some special equity, and placed the ruling upon the ground that it would otherwise invade the right of trial by jury. This case was thereafter followed.

Thus matters stood until the Act of October 1, 1923, Acts 1923, p. 764. This statute, as last amended, came up for consideration in Jenkins v. Raulston, 214 Ala. 443, 108 So. 47. As appears from the opinion and more fully from the original record, which has been examined, that case involved six or more acres of lands known as "Woodlawn," lying between inclosed lands of adjoining proprietors. The bill was filed in two aspects; one invoking the equity jurisdiction at common law; the special equity relied upon being an estoppel by reason of an agreed boundary line acquiesced in for some 30 years. This court held the trial court in error in sustaining a demurrer to that aspect of the bill. This aspect of the bill, however, was amended, no ruling was made on demurrer thereto, and the trial court held the evidence did not sustain the bill in this aspect. This finding was sustained in this court. The other aspect of the bill was framed under the statute. The bill disclosed that the title to a definite piece of land was involved, set forth the line claimed by complainant, and based claim thereto both on muniments of title and continued possession under claim of ownership. Demurrer challenged the bill on the ground that it involved title to lands; attacked the constitutionality of the statute as a denial of trial by jury. The trial court in his ruling on demurrer held the statute constitutional and overruled the demurrer. The defendant by answer expressly set up adverse possession to the line claimed by him. Much testimony related to alleged adverse possession on both sides. The trial court held upon the evidence that neither party had made out a case of adverse possession to the line claimed by him, that the line must be determined from the muniments of title, and appointed a commission to locate it.

Touching this aspect of the case, this court said:

"Since the Act of 1923, p. 764, approved October 1 1923, this subdivision 5 of section 3052, Code of 1907 (now section 6465, Code of 1923), reads: The circuit court in equity matters has jurisdiction: '5. To establish and define uncertain or disputed boundary lines whether the bill contains an independent equity or not.' These words, 'whether the bill contains an independent equity or not,' were added by this act. This bill was filed February 12, 1924, and the decree on the demurrer was rendered on May 1, 1924, after this amendment by the act was written in this section; and it was unnecessary for this bill to allege some facts showing an independent equity. Acts 1923, p. 764, § 1; section 6465, Code of 1923.

"But the respondents insist this act of 1923, amending section 3052 of the Code of 1907, is unconstitutional, that it violates section 11 of the Constitution of 1901,

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