David Childers and Robert DeShawn Childers v. Leroy Darby ( 2014 )

REL: 09/19/2014
Notice: This opinion is subject to formal revision before publication in the advance
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Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
____________________
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____________________
David Childers and Robert DeShawn Childers
v.
Leroy Darby
Appeal from Lauderdale Circuit Court
(CV-12-900223)
STUART, Justice.
David Childers and Robert DeShawn Childers ("Shawn")
appeal the Lauderdale Circuit Court's judgment quieting title
in a certain piece of real property, on which is situated a
house, in Leroy Darby. We reverse and remand.
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Facts and Procedural History
In August 2012, Darby filed a complaint to quiet title in
certain real property, averring:
"1. This action is brought pursuant to the Code
of Alabama, 1975, as amended, § 6-6-540, et seq.,
and 6-[6]-560, et seq.
"The Defendant land, in which a fee simple
ownership interest is sought, is as follows:
"Beginning at a point on the East line of
the Northeast 1/4 of the Northeast 1/4 of
Section 9, Township 1 South, Range 12,
which said point is 525 feet North of the
Southeast corner thereof; thence West 210
feet; thence North 315 feet; thence East
210 feet to Section Line Road; thence South
315 feet to the point of beginning.
"2. [Darby] claims to have a fee simple title in
or to the said land described hereinabove.
"3. The land that is subject to this complaint
was obtained by [Darby] through THE PROBATE COURT OF
LAUDERDALE COUNTY, ALABAMA to [Darby] at Tax Sale
dated May 5, 2009.
"4. Thereafter upon application to the State
Land Commissioner of the State of Alabama by
[Darby], a deed was proffered to [Darby] on May 8,
2012, the STATE OF ALABAMA proffered to [Darby] a
deed to said parcel recorded in the office of the
Judge of Probate of Lauderdale County, Alabama and
recorded on RLPY 2012, PAGE 20142.
"5. [Darby] has made a party or parties to this
complaint, all persons against whom [Darby] claims
title to said lands through their statutory rights
of redemption, those being:
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"A. BARBARA E. HOLLIS, address unknown.[1]
"B. SHAWN CHILDERS, ---- County Road 141,
Florence, AL 35633.
"C. A, B, C, AND ALL OTHER PERSONS OR
ENTITIES CLAIMING ANY PRESENT, FUTURE,
CONTINGENT, REMAINDER OR OTHER INTEREST IN
THE DEFENDANT LANDS DESCRIBED HEREINABOVE,
WHERE TRUE NAME IS UNKNOWN TO THE PLAINTIFF
AT THE PRESENT TIME BUT WHICH WILL BE ADDED
HERETO BY AMENDMENT WHEN ASCERTAINED.
"6. The only person who is known to [Darby] who
has had physical possession of said lands, or any
part thereof since the decree of sale in May 5,
2009, other than [Darby], is the defendant, SHAWN
CHILDERS. [Darby], by and through his attorney of
record, James Q. Stanphill, Jr., sent SHAWN
CHILDERS, a written demand for possession of the
property dated June 20, 2012. [Childers] received
the notice via certified mail on June 28, 2012.
"7. All persons who have at any time within 10
years next preceding the filing of this complaint
assesses [sic] or paid any taxes upon said lands or
any interest therein are:
"A. LEROY DARBY
"B. BARBARA E. HOLLIS
"8. The age, address or legal competency of
defendant BARBARA E. HOLLIS is unknown to [Darby].
It is believed to be, but unknown to [Darby], that
[Hollis] is, at the time of the filing of this
complaint, deceased. The Defendant, SHAWN CHILDERS,
is over the age of 19 years old, residing at ----
1
The recorded deed for the real property at issue named
Hollis as the owner of the property.
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County Road 141, Florence, AL 35633, and of legal
competency. The age, address or legal competency of
any other of the hereinabove persons is unknown to
[Darby].
"....
"WHEREFORE FROM THE ABOVE STATED PREMISES,
[Darby] requests that this Honorable Court take
jurisdiction over this cause of action and issue all
orders, notices, demand all publications and take
all such other actions necessary so as to set a date
for hearing to quiet title to the above described
property into [Darby]."
(Capitalization in original.) The complaint was subsequently
amended to name Martha Creasy, Leslie Creasy's widow, and
their children –- Tina Creasy, Robert Creasy, and Roy Creasy
–- as defendants.2
Shawn answered the complaint. A trial was conducted on
two separate days. After the first day, the trial court
entered the following order:
"This cause came before the Court on complaint
to quiet title, Defendants Barbara Hollis, Martha
Creasy, Tina Creasy, Robert Creasy, and Roy Creasy
were served by publication but failed to appear.
Defendant Robert DeShawn Childers did appear pro se.
"[Darby] presented evidence from Clint Wilkes,
an abstractor, that the title to the property in
2
A title search established that Hollis had been deeded
the property by Martha Creasy, who had inherited the property
at her husband's death.
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question, according to the courthouse records, is
vested in Barbara Hollis subject to a tax lien and
tax deed in favor of Leroy Darby. [Darby] testified
that he bought the property at a tax sale in March
2009. He has driven by the property but has never
been on the property. To his knowledge the house
located on the property is occupied by [Shawn] whose
name appears nowhere in the title records. No one
has ever made any effort to redeem the property.
"[Darby] rested his case and the court allowed
[Shawn] to testify in his own behalf.[3] [Shawn]
claimed that his father, who is now age 85, bought
the property at a foreclosure sale in 1995 although
he had no firsthand knowledge of this fact. He was
unable to tell the court from whom it was purchased.
[Shawn] further claimed that on a previous occasion
a person tried to evict him from the property
claiming they had bought the land at a tax sale but
a circuit judge in this circuit ruled the tax deed
was invalid. He was unable to tell the court the
names of the litigants, the court case number, or
the time frame for such suit.
"[Shawn] requested additional time to gather his
evidence. Motion granted. The balance of this case
is continued ... for [Shawn] to present any evidence
he has of his claim to title."
Shawn retained counsel and moved the trial court,
pursuant to Rule 19, Ala. R. Civ. P., to join David Childers,
his father, as a defendant in the action. The trial court
granted the motion, and David was added as a party to the
action.
3
Shawn testified that he had resided on the property since
2000.
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On December 3, 2013, the trial resumed. The trial court
admitted into evidence the deposition of David, who testified
that, at a foreclosure sale in 1995, he had purchased the real
property at issue, which consisted of 2.7 acres and on which
was situated a two-bedroom house with various outbuildings.
He stated that he had repaired the house, had cleaned up the
yard, and had used the surrounding land to train his horses
from 1995 through 2003 or 2004. He explained that he had
filed a deed reflecting his ownership of the property but that
he had never paid taxes on the property because he had been
informed by the "tax office" that he was exempt from taxes
because he was 65 years old and totally disabled. According
to David, his son Shawn has lived on the property since 2000.
In support of his testimony, David presented a statement from
the Florence Utilities Department indicating that in 1995
electricity had been connected to the house in his name and
that the account for electrical service to the house has
remained in his name.
Evidence was also presented indicating that the deed
filed by David was not for the property at issue but for an
adjoining one-acre lot. A copy of a quitclaim deed from
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Martha Creasy and one of her sons transferring the one-acre
lot adjoining the property at issue to David was admitted into
evidence. Additionally, a mortgage-foreclosure deed
indicating that the one-acre lot owned by David had been
foreclosed on in 2004 was admitted into evidence, and
additional evidence was admitted indicating that that property
had subsequently been sold several times.
After considering the testimony and other evidence, the
trial court quieted title in the real property, including the
house, in Darby. Shawn and David moved for a new trial or, in
the alternative, to alter, amend, or vacate the judgment,
arguing, among other grounds, that the trial court had erred
in quieting title in Darby because, they asserted, the
evidence did not establish that Darby was in peaceable
possession of the property. The trial court denied the
motion, and Shawn and David appealed.
Standard of Review
"In an action to quiet title, when the trial
court hears evidence ore tenus, its judgment will be
upheld unless it is palpably wrong or manifestly
unjust. Mid–State Homes, Inc. v. King, 287 Ala.
180, 249 So. 2d 836 (1971); and Webb v. Griffin, 243
Ala. 468, 10 So. 2d 458 (1942). However, the
presumption of correctness does not attach to a
trial court's conclusions of law. Cullman
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Wholesale, Inc. v. Simmons, 592 So. 2d 1031, 1034–35
(Ala. 1992); Gaston v. Ames, 514 So. 2d 877, 878
(Ala. 1987); Smith v. Style Adver., Inc., 470 So. 2d
1194 (Ala. 1985); and League v. McDonald, 355 So. 2d
695 (Ala. 1978)."
Woodland Grove Baptist Church v. Woodland Grove Cmty. Cemetery
Ass'n, 947 So. 2d 1031, 1036 (Ala. 2006).
Analysis
First, Shawn and David maintain that the complaint filed
by Darby did not satisfy the statutory pleading requirements
to invoke the trial court's jurisdiction over a quiet-title
action. They contend that the complaint is deficient because
Darby did not aver specifically that he was in peaceable
possession of the real property.
Section 6-6-540, Ala. Code 1975, provides:
"When any person is in peaceable possession of
lands, whether actual or constructive, claiming to
own the same, in his own right or as personal
representative or guardian, and his title thereto,
or any part thereof, is denied or disputed or any
other person claims or is reputed to own the same,
any part thereof, or any interest therein or to hold
any lien or encumbrance thereon and no action is
pending to enforce or test the validity of such
title, claim, or encumbrance, such person or his
personal representative or guardian, so in
possession, may commence an action to settle the
title to such lands and to clear up all doubts or
disputes concerning the same."
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Rule 8, Ala. R. Civ. P., provides that a complaint is
sufficient if it puts a defendant on notice of the claims
asserted against him or her. A rule or statute, however, may
qualify the rule of generalized notice pleading. Bethel v.
Thorn, 757 So. 2d 1154, 1158 (Ala. 1999). Section 6-6-541,
Ala. Code 1975, sets forth the required contents of a
complaint in a quiet-title action, stating:
"The complaint authorized by Section 6-6-540
must describe the lands with certainty, must allege
the possession and ownership of the plaintiff and
that the defendant claims, or is reputed to claim,
some right, title, or interest in, or encumbrance
upon, such lands and must call upon him to set forth
and specify his title, claim, interest, or
encumbrance and how and by what instrument the same
is derived and created."
In this case, although Darby did not include the term
"peaceable possession" in his complaint, the complaint on its
face satisfied the statutory requirements for pleading a
quiet-title action. In the complaint, Darby identified the
statute, § 6-6-540, Ala. Code 1975, pursuant to which his
action was filed and alleged facts demonstrating his
possession of the property. Darby included a legal
description of the property, stated that he had purchased the
property through a tax sale conducted by the Lauderdale
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Probate Court in 2009, stated that he had obtained from the
State a deed to the property in May 2012, identified the
parties that might have claim to the property through their
statutory rights of redemption, identified Shawn as the only
person to his knowledge who had had physical possession of the
property, and requested that the trial court conduct a hearing
to quiet title to the property. Those averments by Darby
satisfy the requirements of Rule 8, Ala. R. Civ. P., and § 6-
6-541, Ala. Code 1975, for pleading a quiet-title action.
Next, Shawn and David contend that the trial court erred
in quieting title in Darby because, they say, the evidence
does not support the trial court's finding that Darby was in
peaceable possession of the property, as required by § 6-6-
540, at the time he filed his quiet-title action.
Specifically, Shawn and David maintain that because Shawn was
in actual possession of the property at the time Darby filed
his complaint, Darby was not in peaceable possession of the
property.
To establish a prima facie case in a quiet-title action,
the plaintiff must prove that he or she is in peaceable
possession of the real property. § 6-6-540. "[W]hat
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constitutes peaceable possession ... must be left for
determination on the facts of each particular case." Webb v.
Griffin, 243 Ala. 468, 471, 10 So. 2d 458, 460 (1942).
The term "peaceable possession" was defined as follows in
George E. Wood Lumber Co. v. Williams, 157 Ala. 73, 76-77, 47
So. 202, 203 (1908):
"So the question arises, what is peaceable
possession? It cannot mean that it is peaceable
unless there be some legal proceeding in progress to
test the title or right to possession; for the
object of the statute is to allow the party who is
in possession, and who cannot force the adversary
claimant to institute any proceeding, to bring said
party into court in order to determine whether he
has any just claim to the property. The word
'peaceable,' then, refers to the character of his
possession. So long as his possession is so clear
that no one is denying the fact of his actual or
constructive possession, it is peaceable, although
some other person may be denying his right to
possession."
In Southern Railway Co. v. Hall, 145 Ala. 224, 226-27, 41
So. 135, 136 (1906), this Court explained that peaceable
possession may be either actual and constructive, stating:
"The word peaceable in connection with the word
possession is used 'as contradistinguished from
disputed or contested possession, and that it should
be under claim of ownership.' Adler v. Sullivan,
115 Ala. 58[2], 22 So. 87 [(1897)].
"'Actual possession, or possession in fact,
exists when the thing is in the immediate occupancy
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of the party, or his agent or tenant,' is synonymous
with pedis possessio. 28 Am. & Eng. Ency. Law, (2d
Ed.) 238.
"'Constructive possession, a possession in law,
it is sometimes called, is that possession which the
law annexes to the legal title or ownership of
property, when there is a right to the immediate
actual possession of such property, but no actual
possession.' [Id. at] 239.
"'When one has a legal estate in fee in land, he
has the constructive possession, unless there is an
actual possession in some one else.' It is founded
on the existence of title, in some form. [Id.]"
With regard to constructive possession, a person
demonstrates that he or she is in constructive possession of
real property if he or she has a legal estate in fee in the
real property and no one is in actual possession of the
property. Hinds v. Slack, 293 Ala. 25, 299 So. 2d 717 (1974);
Barry v. Thomas, 273 Ala. 527, 142 So. 2d 918 (1962); and
George E. Wood Lumber Co. v. Williams, supra.
A review of the evidence establishes that the trial court
erred in quieting title in Darby because the evidence does not
establish that Darby was in peaceable possession of the
property. Darby's testimony that he had only driven past the
property several times but had never walked the property or
obtained actual possession of the property established that he
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was not in actual possession of the property. The evidence
further established that, although Darby had legal title to
the property, Shawn was living on the property. Therefore,
because Shawn was in actual possession of the property, the
evidence did not establish that Darby had constructive
possession of the property. Southern Ry. v. Hall, supra.
Because the evidence does not demonstrate that Darby had
either actual or constructive peaceable possession of the
property and because title may not be quieted in one who does
not have peaceable possession, the trial court erred in
quieting title in Darby. Dennison v. Claiborne, 289 Ala. 69,
265 So. 2d 853 (1972); and Chestang v. Tensaw Land & Timber
Co., 273 Ala. 8, 134 So. 2d 159 (1961).
Darby also filed his action pursuant to § 6-6-560, Ala.
Code 1975; however, he cannot satisfy the requirements of
that statute either.
Section 6-6-560 provides:
"When any person, natural or artificial, claims,
either in his own right or in any representative
capacity whatsoever, to own any lands or any
interest therein, and is in the actual, peaceable
possession of the land, or if neither he nor any
other person is in the actual possession of the
lands and he holds, and has held, color of title to
the lands, or interest so claimed, for a period of
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10 or more consecutive years next preceding and has
paid taxes on the lands or interest during the whole
of such period, or if he, together with those
through whom he claims, has held color of title and
paid taxes on the land or interest so claimed during
the whole of such period of time, or if he and those
through whom he claims have paid taxes during the
whole of such period of 10 years on the lands or
interest claimed and no other person has paid taxes
thereon during any part of said period, he may, if
no action is pending to test his title to, interest
in or his right to the possession of such lands,
file a verified complaint in the circuit court of
the county in which such lands lie against said
lands and any and all persons claiming, or reputed
to claim, any title to, interest in, lien, or
encumbrance on said lands, or any part thereof, to
establish the right or title to such lands or
interest and to clear up all doubts or disputes
concerning the same."
Section 6-6-560 is applicable when either the plaintiff is in
actual peaceable possession of the property or no one is in
actual possession of the property. Fitts v. Alexander, 277
Ala. 372, 375, 170 So. 2d 808, 810 (1965). Here, the evidence
established that Darby was not in actual possession of the
property and that Shawn was in actual possession of the
property; therefore, Darby's evidence did not establish a
prima facie case under § 6-6-560, and Darby is not entitled to
title being quieted in him under that statute.
Lastly, this Court recognizes that if a defendant has
answered a plaintiff's quiet-title action and the evidence
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shows that the defendant has the better title and has
peaceable possession, then a trial court has the authority to
quiet title in the defendant. Chestang v. Tensaw Land &
Timber Co., 273 Ala. at 18, 134 So. 2d at 169. A review of
the record, however, does not establish that either Shawn or
David has peaceable possession of the property or that either
Shawn or David had acquired title to the property by adverse
possession, see Cagle v. Hammond, 51 So. 3d 150 (Ala. Civ.
App. 2010); therefore, the record does not support a judgment
quieting title in either Shawn or David.
Conclusion
Based on the foregoing, the judgment of the trial court
is reversed and the case is remanded.
REVERSED AND REMANDED.
Parker and Wise, JJ., concur.
Moore, C.J., concurs specially.
Shaw, J., concurs in the result.
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MOORE, Chief Justice (concurring specially).
I concur with the holding in the main opinion that Leroy
Darby's quiet-title action fails based on his lack of
peaceable possession of the property at issue. I note that, in
a case such as this, when a party has legal title to a
property, but another person is in actual possession, the
person claiming title may bring "an action in the nature of an
action of ejectment." § 6-6-280(a), Ala. Code 1975. The
complaint in such an action "for the recovery of land or the
possession thereof ... is sufficient if it alleges that the
plaintiff was possessed of the premises or has the legal title
thereto ...." § 6-6-280(b), Ala. Code 1975 (emphasis added).
"In a statutory action in the nature of ejectment a
plaintiff may recover by showing legal title to the premises
sued for at the time of the commencement of the suit and the
right to immediate possession." Atlas Subsidiaries of Florida,
Inc. v. Kornegay, 288 Ala. 599, 601, 264 So. 2d 158, 161
(1972). "Ejectment is a favored action for the trial of title
to land." Kelley v. Mashburn, 286 Ala. 7, 9, 236 So. 2d 326,
327 (1970).
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