Kinney v. Steiner Bros. , 167 Ala. 494 ( 1910 )

ANDERSON, J.

To maintain a bill under the statute for the determination of claims to real estate and to quiet title thereto, it - is necessary for the complainants to aver and prove that at the time of the institution of the suit the complainants’ possession of the land involved was peaceable, as contradistinguished from disputed or contested,’ possession, and that it was tinder claim of ownership.-Lyon v. Arndt, 142 Ala. 486, 38 South. 242; Randle v. Daughdrill. 142 Ala. 490, 39 South. 162. We think the complainants’ possession was, at best, a mere scrambling one, attempted for the purpose of malting the respondent the actor in the courts. It was undisputed that the land is wild or timber land, that respondent had it inclosed with a barb-wire fence, and to all intents and purposes-was in possession; and complainants’ counsel admitted as a Avitness that he advised the planting of oats on the land for the purpose of compelling the proprietor of the fence to resort to an action of ejectment. The effort made to suddenly transform this forest, or densely timbered piece of land, into a nourishing oat field in so short a time, did not, we think, materialize to the extent of terminating the respondent’s possession. The oats may have been sown, but there was no proof that they came up or Avere harvested. Indeed, the Aveight of evidence is that the planting was a mere sham for the purpose of dispossessing- the respondent, and that what Avas done gave no signs that the land Avas being cultivated by any one or that respondent had been dispossessed.. The witnesses all testify that the land shoAved no signs of cultivation. Orr testified that he saAV no oats on the land; that they might sprout, but Avould not grow, on the land in its condition. Trie did admit on cross-examination that, if he saw oats growing on the land, he Avould think some, one planted them there. “I would think that he was a mighty big fool, if he thought he would make a crop.” We think that the proof shows that the respondent, and not the complainants, had the possession of the land when the bill was filed, and that the acts of complainants Avere but a scramble to get in possession in order to file said bill.

The chancellor erred in granting complainants’ relief and the decree of the chancery court is reversed, and one is here rendered dismissing the bill.

Reversed and rendered.

Doavdell, C. J., and Mayfield and Sayre, JJ., concur.