Opinion
6 Div. 552.
May 29, 1930.
Appeal from Circuit Court, Jefferson County; W. M. Walker, Judge.
C. C. Nesmith, of Birmingham, for appellant.
Complainant's possession was a scrambling possession, and she was not entitled to relief. Crabtree v. Ala. Land Co., 155 Ala. 513, 46 So. 450.
H. M. Abercrombie, of Birmingham, for appellee.
Where respondent seeks no affirmative relief and complainant has made out a prima facie case, the only question is whether respondent has any title to or interest in the property. Burkett v. Newell, 212 Ala. 183, 101 So. 836; Carr v. Moore, 203 Ala. 223, 82 So. 473; Burkhalter v. Ala. M. L. Co., 206 Ala. 482, 90 So. 897. The former possession of respondent before the bill was filed and claim of ownership to the land did not change the character of complainant's peaceable possession taken and maintained immediately prior to and at the time the bill was filed, nor does such former possession or claim of ownership by respondent make the possession of complainant a scrambling possession. A denial by another of complainant's possession does not create a scrambling possession sufficient to destroy the interest of complainant to maintain suit to quiet title. Carr v. Moore, supra; Dennis v. McEntire Mercantile Co., 187 Ala. 314, 65 So. 774; Jordan v. McClure L. Co., 170 Ala. 289, 54 So. 415; Sou. R. Co. v. Hall, 145 Ala. 224, 41 So. 135; Montgomery v. Spears, 218 Ala. 160, 117 So. 753; Adams v. Pollack, 217 Ala. 688, 117 So. 299; Kendrick v. Colyar, 143 Ala. 597, 42 So. 110.
Appellee's bill is filed under the statute, section 9905 of the Code, to quiet her title to a small parcel of land described therein. It was incumbent, of course, upon appellee to show her "peaceable possession" of the property at the time of filing her bill. The purpose of the statute is to give a remedy to persons in peaceable possession only. Fleming v. Moore, 122 Ala. 399, 26 So. 174. Appellant set up title in himself and denied that appellee's possession was peaceable. The decree under review settled the title, as between the parties to the bill in favor of appellee, and, by necessary implication, determined that she was in peaceable possession; but, as to that, there was no specific adjudication. The question now at issue between the parties involves the matter of peaceable possession only. As to that the burden of proof rested upon appellee.
It is entirely clear that the controversy between the parties arose out of a race of diligence between the immediate predecessors in title of the parties to acquire title to the land which had been bid in by the state at a sale for unpaid taxes assessed to one Herron. Appellee's grantor had a tax deed from the state. Appellant claimed title under a deed from one Stockdale, who had found the land, unimproved and unoccupied, and had taken possession, and another deed from one Holland, who, it was supposed, might be the heir at law of another Holland to whom the land had at one time been assessed, but who, in some way, had been killed. Both parties had paid taxes assessed against the property, but that was a matter of no consequence as going to show peaceable possession.
It may be conceded that as between appellant Hagler and one Teer, who was appellee's grantor, the possession was "scrambling" so that neither of them would have been in position to file a bill under the statute. But appellee took her deed from Teer in 1927, and at that time the property was inclosed by a wire fence, in a state of dilapidation — if that term may be used with reference to a wire fence — it is true, but still a fence. Appellee had planted a small turnip patch upon the land. Her possession is not shown to have been acquired otherwise than peaceably, nor to have been "scrambled" by any subsequent possessory acts of interference. The "scrambling" shown in evidence anteceded her acquisition of title, and, for that matter, it is not made to appear that she was informed of the facts by which the precedent dispute had in its time been made evident.
Our cases on the subject here involved are cited in the annotation of section 9905, Michie's Code. There is no need to repeat.
The decree is affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.