Opinion
6 Div. 491.
November 17, 1960.
Appeal from the Circuit Court, Cullman County, K. J. Griffith, J.
Murray A. Battles, Cullman, for appellants.
The only appropriate plea to an action in nature of ejectment is a plea of not guilty. Adverse possession may be shown under such plea. The trial court was without authority to render default judgment. Code 1940, Tit. 7, §§ 940, 941; Golden v. Rollins, 259 Ala. 286, 66 So.2d 91; Metropolitan Life Ins. Co. v. Estes, 228 Ala. 582, 155 So. 79; Bush v. Thomas, 172 Ala. 77, 55 So. 622; Clarady v. Abraham, 174 Ala. 130, 56 So. 720; Fiscus v. Young, 243 Ala. 39, 8 So.2d 514; Guy v. Lancaster, 250 Ala. 226, 34 So.2d 10; State v. Broos, 257 Ala. 690, 60 So.2d 843.
W. Marvin Scott, Cullman, for appellees.
The trial court was authorized to render default judgment on defendants' failure to furnish abstract of title. Code 1940, Tit. 7, §§ 940-951; Hambaugh v. McGraw, 209 Ala. 541, 96 So. 571; Ex parte Scudder-Gale Gro. Co., 120 Ala. 434, 25 So. 44; Ex parte Central Ala. D. G. Co., 238 Ala. 20, 189 So. 56. Where two persons are in possession of a tract of land or a part of it neither can claim against the other by adverse possession. Bell v. Williams, 256 Ala. 298, 54 So.2d 582; Singley v. Dempsey, 252 Ala. 677, 42 So.2d 609.
This is an appeal from a judgment for the plaintiff in a statutory action of ejectment.
The defendants plead the general issue, which of course admitted their possession. Code of 1940, Tit. 7, § 941.
The cause was never heard on its merits but the trial court granted the plaintiff's motion for a judgment by default under authority of § 940, Tit. 7, of the Code, rested on the premise that, although the defendants did furnish an abstract of title, it did not cover the lands in suit.
But the defendants did furnish the best abstract they could, which contained the deed of conveyance on which they relied for title; at the same time, they made known to the court that, regardless of the fact that they might not be able to furnish an abstract which would show title in them to the suit property by mesne conveyances, they intended to establish, at the trial, title to a part of the property by adverse possession. If, of course, the defendants could not produce an abstract showing a good paper title, but could establish title by adverse possession, under these circumstances a judgment by default should not have been rendered against them. As stated, they furnished the best abstract they could and should have been allowed to go to trial on the general issue and to prove, if they could, that they owned the property, or a part of it, by adverse possession.
If, of course, it should be developed by the facts that they did not own all the suit property, they could disclaim possession and claim of ownership to the part not claimed and not adversely possessed by them. Code of 1940, Tit. 7, § 942; Jones v. Mitchell, 258 Ala. 651, 64 So.2d 816.
We think we are supported in this conclusion by the rationale of such cases as Robbins v. Gilligan, 86 Ala. 254, 5 So. 568, which hold that said § 940 does not prevent a party, after furnishing abstract of title on which he relies, from introducing deeds which tend to disprove the other party's title, although such deeds were not included in his abstract. By analogy we think it proper to say that the defendants could introduce evidence of adverse possession to disprove the plaintiff's title, as well as a party could introduce deeds to disprove his opponent's title.
We attain the conclusion, therefore, that the learned trial court was in error in rendering the judgment aforesaid.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.