Summary
In Brookside-Pratt Mining Co. v. Wright et al., 234 Ala. 70, 173 So. 605, the authorities are collected to the effect that to recover in a statutory action to quiet title to land, complainant must allege and prove that, at the institution of suit, complainant's possession of the land in question was peaceable, as distinguished from disputed or contested possession, and that it was held under claim of ownership.
Summary of this case from Weeks v. WallsOpinion
6 Div. 32.
April 8, 1937.
Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.
Arthur Fite, of Jasper, for appellant.
J. B. Powell, of Jasper, for appellees.
Statutory bill to quiet title. In their behalf complainants invoke sections 9905 et seq. of the Code.
The bill nowhere avers that the complainants are in the peaceable possession of the lands, nor does it employ any words of like import.
To present a proper bill under the statute for the determination of claims to land, and to quiet title thereto, it is necessary to aver, inter alia, and the proof to show, 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 under claim of ownership. Lyon v. Arndt, 142 Ala. 486, 38 So. 242; Randle v. Daughdrill, 142 Ala. 490, 39 So. 162; Kinney v. Steiner Bros., 167 Ala. 494, 52 So. 593; Burgin v. Hodge, 207 Ala. 315, 93 So. 27; Davis v. Daniels, 204 Ala. 374, 85 So. 797; Joiner v. Glover, 20l Ala. 279, 78 So. 55; Hicks et al. v. Stone, 210 Ala. 685, 99 So. 115; Watson v. Baker et al., 228 Ala. 652, 154 So. 788.
The bill was manifestly defective in not averring that the complainants were in the peaceable possession of the lands at the time the suit was filed, and the court committed error to reversal in overruling the demurrer taking this point. Authorities, supra.
For this error the interlocutory decree of the court below must be reversed. A decree will be here entered sustaining the respondent's demurrer, and remanding the cause.
The complainants will be allowed twenty days within which to amend their bill, if they are so advised.
Reversed, rendered and remanded.
ANDERSON, C. J., and THOMAS, and BROWN, JJ., concur.