Foy v. Barr , 145 Ala. 244 ( 1905 )

ANDERSON, J.

-While a party who has either the actual or constructive possession of land may maintain a bill under section 809 of the Code of 1896, said possession must be peaceable and undisputed, as distinguished from a disputed or scrambling possession.— Ladd v. Powell, 144 Ala. 408 ; Lyon v. Arndt, 142 Ala. 486, 38 South. 242 ; Randle v. Daughdrill, 142 Ala. 490, 39 South. 162 ; Brand v. U. S. C. Co., 128 Ala. 579, 30 South. 60 ; Adler v. Sullivan, 115 Ala. 582, 22 South. 87. Not only does all of the evidence of respondents establish a posssesion in them when the bill in this case was filed and for some time prior thereto, but they are supported by the evidence of the complainant himself, who says: “I have never been in possession of said land. I was not in possession of said land in February, 1902, and have never been in possession of said land. I found Foy Bros., the respondents, in possession of the land on October 30, 1900.”

We agree with counsel for' appellee that constructive possession of land is in him who has the legal title, provided no one else has the actual possession; but in the case at bar the weight of the evidence not only puts the actual possession of the cleared land in the respondents, but the woodland also. They cleared and brought into cultivation a part of it, constantly cut wood and timber off of it, paid taxes on it and kept trespassers off, and used a good portion of it as a pasture, which was inclosed by a fence. In fact, they put the land to almost every use to which it was in its uncultivated nature adapted. It is unnecessary for us to determine the question of title in this case, as the complainant cannot maintain his bill, regardless of title. Neither do we mean to hold that the possession of the respondents has ripened into a title, regardless of the paper title. We simply hold that, as the complainant had neither the peaceable or undisputed possession of the land, actual or constructive, when the bill Avas filed, he is not entitled to the relief sought.

The chancellor erred in granting the complainant relief and a decree Avill be here rendered reversing the decree of the chancellor and dismissing the bill.

Reversed and rendered.

Haralson, Tyson, and Denson, JJ., concur.