Donohoo v. Smith

ANDERSON, C. J. [1,2] This bill was filed under section 5443 of the Code of 1907, to quiet title to certain land therein described. It has been repeatedly held by this court *297 that, in order to maintain such a hill, the complainant must have at the time of filing same the peaceable possession, actual or constructive, as distinguished from what is termed a scrambling possession — that is, one which is disputed or contested. Cen. of Ga. R. R. v. Rouse, 176 Ala. 138, 57 South. 700, and eases there cited. There was evidence in this case showing that the complainant’s possession was disputed, and that one of the respondents had previously acquired possession through the attornment of the tenant in possession, and as the evidence was ore tenus, or partly so, the conclusion of the trial court is like unto the verdict of a jury. Senior v. State, 205 Ala. 337, 87 South. 592; Ray v. Watkins, 203 Ala. 683, 85 South. 25. The decree of the circuit court must for this reason, if not other reasons, be affirmed. Affirmed. McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.