Gulf Red Cedar Lumber Co. v. Crenshaw

HARALSON, J. — The case made by the original bill, is sufficiently shown by the decision 'and report of the case on the first appeal—131 Ala. 117, 30 South. 466, 90 Am. St. Rep. 22. The changes made by the amendments to the bill are shown in the decision and report on the second appeal.—138 Ala. 134, 35 South. 50. Both these appeals were taken to review decrees on demurrers interposed to the original and amended bills. The present appeal is taken from a decree overruling several — 349 — pleas, numbered 1 to 7, inclusive, interposed to the bill as amended. For our present purpose it is sufficient to state that the bill is one by alleged tenants in common in certain standing timber for an accounting agáinst the co-tenant for timber cut, removed and appropriated to its exclusive use, also for a discovery by the defendant officers of the defendant corporation in aid of the accounting sought, and for an injunction against further removal of the timber. The first plea avers that the deed under which complainants claim title to an interest in the timber was never delivered to the grantees therein. The averment, of the plea does not controvert the averments of the bill relied on to show delivery of the deed, and which were held on the first appeal sufficient to show a delivery, but merely asserts that the deed was never delivered to the grantees. Construing the averment of the plea most strongly against the pleader, this simply shows, that the deed was not placed in the possession of the grantees, it is obvious that this may he. true and yet the deed under the averments of the hill was constructively delivered. The second plea avers that the deed was not delivered until after an alteration therein, the effect of which was to reserve in the grantor a power to- sell the timber, which power, as appears from the bill, was executed (if the plea he true) by a conveyance of the title now claimed bv complainants to those from whom defendant claims, and by further conveyance to defendants extending the time for. removal of the timber. The second plea is insufficient, in that it set up an immaterial issue, for whether the grantor reserved possession of the land until the youngest child arrived at the age of 21 years, or for his life, lie was without power as a tenant for life to sell the growing timber on the land. —Gulf Red Cedar Company v. Crenshaw, 138 Ala. 139, 35 South. 50. Plea. 3 is a. recital of facts clearly set up in the bill. Is it not an effort, to interpose a demurrer in the form of a plea ? The same question .arose in the case when the cause was heie on a former appeal.—131 Ala. 117, — 350 — 30 South. 466, 90 Am. St. Rep. 22. As stated by counsel for appellee: “The plea asserts no new fact, and only declares the legal effect of facts alleged in the bill. It contains neither the averment of any fact in avoidance of the averments of the bill, nor denial of the facts therein averred.” What is said with reference to this plea applies with equal force to plea 4. The court did not err in ruling that these two pleas were insufficient. The fifth plea sets up adverse possession in respondents at the time of the acts complained of; that their adverse possession continued from the time their entry was made and cutting begun until the timber was severed and removed from the .lands. The plea does not aver that defendants were in the adverse possession of the imoperty, that is, of any remaining standing timber, at the time the suit was1 instituted. The sixth plea, sets up the same matter with the additional averment that such adverse possession continued down to the filing of the original bill. Neither of the pleas seek to set up a title perfected by ten years adverse possession of the standing timber. They proceed upon the hypothesis that if one co-tenant has ousted the other and asserted an exclusive claim of title hostile to his co-tenant accompanied by possession under such claim, this is a bar to a suit by the co-tenant for an accounting-in such case as this. The cases relied upon as sustaining the pleas are Ashurst v. McKensie, 92 Ala. 490, 491, 9 South. 262, and cases following it. in which it is declared, that a court of eouitv is without power to determine the title to lands adversely held, in an action to enjoin an irreparable trespass. In that case numerous averments were made in the bill seeking to give it equity upon other and independent grounds, but the decision shows that all such averments were lacking and insufficient to give the court jurisdiction of the whole controversy. Here, a clear case is made for an accounting as well as for a discovery against the co-tenant and its officers. This was determined after full consideration of the second appeal.—138 Ala. 134, 35 South. 50. Where such is the case, the court having acquired jurisdiction upon — 351 — original equitable grounds, such jurisdiction is not ousted by one co-tenant setting up an issue of title. The court may proceed to determine the whole controversy, the question of the title with the rest. There is no want of power in a court of equity to determine title to lands. It must decline jurisdiction where the remedy at law is complete and adequate, or where its jurisdiction is invoked as a substitute for .an action, of ejectment. Such is not the case presented by the pleas under consideration. Pleas 5 and 6 were properly overruled.— Freeman on Co-Ten. & Par. 449, 450; Williams v. Council, 49 N. C. 210; Early v. Friend, 16 Grat. (Va.) 21, 78 Am, Dec. 649; Kilgore v. Kilgore, 103 Ala. 614, 15 South. 897; Gore v. Dickinson, 98 Ala. 367, 11 South. 743, 39 Am. St. Rep. 67. The seventh plea sets forth at length by reference the conveyances through which respondents - claim title or color of title to the timber in controversy .and sets forth that under such conveyances they and their predecessors entered into the possession of the timber while yet attached to the freehold exercising exclusive possession thereof, cutting and removing same from time to time, and, claiming under their deeds the absolute right to the timber, had held adversely for a period of more than ten years prior to the filing of the bill. The theory of the plea is that prior to the filing of the bill respondents’ title to the standing timber had become perfect by adverse possession, and this is set up as a defense to the whole bill. It is insisted for appellees that under the plea the bar of the statute became complete, if at all, only shortly before the bill was filed, that it presents no defense to an accounting for timber cut prior to the date upon which respondents’ title became perfect by adverse possession. The plea must be construed as a whole. It shows that the title to the timber claimed by respondents or their predecessors was that purporting to be conveyed by the original deed from T. 0. Crenshaw and others to Steiner & Sons, a copy of which is made exhibit “B” to the bill, and referred to in the plea, This deed by appropriate words of conveyance calling for all the cedar timber upon certain described lands with the right to cut, remove, — 352 — etc., purports to convey such timber as a whole, with warranty of title, but “subject to- the period o £ time, and the terms, stipulations and conditions herein expressed and contained.” This deed contains the following provisions: “Provided that the said grantees, their heiis and assigns, are to get and remove, and work up, manufacture and remove, or cut and remove from said lands the said cedar timber and cedar trees herein sold and conveyed within ten years from the date and delivery of this deed of conveyance (and this deed of conveyance is expressly made and accepted upon such terms and conditions) after which period of time all of the rights, privileges, and easements of the said grantees, their heirs and assigns, in, to, and upon the said lands, are to cease and determine, and revert back to the said grantors, their heirs, and assigns.”' By a subsequent conveyance the time within, which the timber wa.s to be removed, was extended, o>r sought to be extended. It is not to be denied that where one or more of several tenants in common execute a deed to a third person purporting to- convey absolutely the entire estate, the possession of the grantee taken under such. conveyance is adverse to the remaining co-tenants. Is that rule -applicable to the holder under the above conveyance? The character of interest of estate purporting to be conveyed by the deed determines the character of the entry. “Adverse possession rests in the intention of the possessor, as is sometimes said, the intention guides the entry and fixes' its character.”— Potts v. Coleman, 67 Ala. 227. This intention, as shown by the plea under consideration, was defined by the terms of the grant. What was the character of possession held under the terms of the deed? It contemplated an entry on the lands, the assumption of present possession and claim of ownership over the standing timber so- far as to effectuate the right to cut and remove the same within the time limited. It also carried the right to oust all others during such term and protect the possession from interference in any wav'. In fact, it purported to pass the present title to the timber, hut not an indefeasible title. The possession of the standing timber under this — 353 — deed was subject to the express condition that it should be removed within the time limited. So long as a tree remained standing the grantee held with the mental reservation, and the legal reservation, that in its then state he had no perfected title, no absolute title, but on the oher hand the trees left standing must revert to or remain the pioperty of another. To be adverse the possession must be hostile to the owner. The claim of the title must be absolute and unconditional. “A possession cannot be adverse, which in any contingency is intended to he in subservience, and subordination to the true title.” —Williams v. Higgins, 69 Ala. 523. Here, the holding was subject to a condition or contingency. The holder was at all times reminded by the terms and conditions of his grant, that his right of possession over the standing timber must cease. His dominion over it as part of the realty ivas but for a term. If not severed and its character as real estate destroyed, his title would never become absolute. We cannot conceive that a possession of standing timber under these circumstances and conditions can be regarded as adverse, and, therefore, hold, that the seventh plea was properly overruled. It follows that the pleas are all had, and the decree of the chancellor is affirmed. Tyson, O. J., and Dowdell and Denson, JJ., concur.