Brown v. Powers , 167 Ala. 518 ( 1910 )

ANDERSON, J.

As has been repeatedly held by this court, in order for the complainant to maintain a bill under the statute to quiet title, he must have the peaceable possession of the land, actual or constructive.— Burroughs v. Pate, 51 South. 978, and cases cited. The complainant proved actual possession as to a small portion of the S. W. % of the N. E. 14 of section 14, the 40 described in the bill of complaint, and as to which he was granted relief. As to the other portion of said 40, he showed neither actual nor constructive possession, and was not entitled to relief as to same. The deed offered by the complainant could not operate to extend his possession to lands not embraced therein. The deed did not purport to convey the land in question, but related to a different 40, and could not extend the complainant’s possession to lands not described in said deed. — Black v. Tenn. Co., 93 Ala. 111, 9 South. 537; Smith v. Keyser, 115 Ala. 455, 22 South. 149.

Notwithstanding this controversy may be between an heir of the vendor and the vendee as to the land embraced in the complainant’s deed, it does not present a case for the application of the holding in the case of Normant v. Eureka Co., 98 Ala. 181, 12 South. 454, 39 Am. St. Rep. 45. The contract of purchase here was reduced to writing and consummated by the execution of a deed which described the land conveyed, and we do not think the complainant could be permitted to show, by parol, over 20 years after the deed was executed, that he contracted for and bought a different 40 acres of land. If the deed misdescribed the land, it should have been corrected in an appropriate proceeding, and not by parol at this late day in the present proceeding. The objections to evidence insisted upon were either free from error or without injury to the appellant.

The only objection urged against the action of the chancellor in ordering a survey after decree was that the complainant did not have notice. The survey in question, was not for the purpose of providing evidence under section 6023 of the Code of 1907, but was to correctly locate the subject of the decree, was reported to the court, and the complainant could have objected to and contested same.

The chancery court properly awarded the complainant relief only as to a small portion of the land, and had the discretion to divide the cost between the parties, and which we think ivas properly exercised. — McDaniel v. Tenn. Co., 153 Ala. 493, 45 South. 159.

Whether the demurrer to the cross-bill was or was not properly overruled, it was of no injury to the complainant. He got the relief to which he was entitled, regardless of the cross-bill, and could not have gotten relief to the other land, had there been no cross-bill.

The decree of the chancery court is affirmed.

Affirmed.

Simpson, Mayfield, and Sayre, JJ., Concur.