This appeal is taken from a final decree which overruled complainants' demurrer and exceptions to respondent's cross-bill and answer respectively, denied relief for which complainants had prayed in their bill to quiet title, granted to the respondent the relief prayed for in his answer and cross-bill, decreed that the complainants have no right, title, or interest in the subject property, and quieted respondent's title in and to said property. In the decree it was further ordered that the respondent have and recover possession of the tract of land known as Parcel Number Two.
By agreement of the parties to this litigation, and pursuant to an order of the lower court, an ejectment suit seeking to recover possession of a tract of 77 acres of the subject property, filed by the respondent on February 25, 1957, wherein the defendant was one of the complainants in the present proceeding, was transferred to the equity side of the court and consolidated with a statutory bill to quiet title to the remaining 80 acre tract of the subject property, wherein the respondent was the plaintiff in the ejectment suit. Thus the title to both parcels of property was tried and quieted together in the equity court.
Complainant's bill called upon the respondent Horace Childress to set forth and specify his title, claim, interest, or incumbrance upon the property claimed by complainants, and how and by what instrument the same was derived and created, following the mandate of Section 1110 of Title 7, Code 1940. Respondent's answer responded to this particular paragraph of the bill in the following manner:
Appellant has provided us with an ingenious argument, contending in essence that the part of the answer set out above was insufficient for failing to specifically avow the character and source of the respondent's title. His rationale is based in part on Section 1111 of Title 7, Code 1940, and on rules enunciated in such cases as Vidmer v. Lloyd, 193 Ala. 386, 69 So. 480; Reeder v. Cox, 218 Ala. 182, 118 So. 338; Adams v. Pollak, 217 Ala. 688, 117 So. 299; Rucker v. Jackson, 180 Ala. 109, 60 So. 139, and Kinney v. Steiner Brothers, 149 Ala. 104, 43 So. 25. On the other hand, there is the case of Rushton v. McLaughlin, 213 Ala. 380, 104 So. 824, which holds that an answer denying each allegation of the bill and demanding strict proof thereof is sufficient and puts in issue complainants' title. If there perchance exists any conflict in the statement appearing in the Rushton case and the authorities advanced by the appellant, it is not necessary to here attempt to reconcile it, as the status of the pleadings in the instant case do not require application of any of the rules contended for.
In complainants' amended bill filed subsequently to the respondent's answer it is averred as follows:
And a written stipulation by counsel for both sides, agreed to and filed in the cause and recited in the note of testimony as follows:
It would be unduly hypertechnical for us to say now, in view of the allegation
There is likewise no merit in appellants' contention that the purchaser at the foreclosure sale, S. M. Pate, acquired no right or title by said deeds because the mortgagor, Monroe Stewart, was deceased at the time the deeds were executed.
Appellants rested their claim of title to the subject tracts on the theory of adverse possession for the requisite period under a claim of title by descent cast. It is true, as pointed out by appellants, that under a statutory bill to quiet title, where it is shown that complainant is in the peaceful possession of the land, either actual or constructive, at the time of the filing of the bill and that there was no suit pending to test the validity of the title, a prima facie case is made out, entitling the complainants to relief, and the burden is then upon the respondent to establish his claim to the land. Vidmer v. Lloyd, supra; Smith v. Irvington Land Co., 190 Ala. 455, 67 So. 250; Burkett v. Newell, 212 Ala. 183, 101 So. 836. But when the respondent shows legal title to the land, the burden of avoiding it by showing superior title by adverse possession shifts to the complainant. St. Clair Springs Hotel Co. v. Balcomb, 215 Ala. 12, 108 So. 858, and see Behan v. Friedman, 218 Ala. 513, 119 So. 20. Furthermore, it is well settled that in a proceeding under the statute, "if the averments of the bill and answer conform to the requirements of the statute, the issues involve everything necessary to a determination by the court as to whether the complainant or the defendant has the superior title to the property, and it is proper for the court under the issues thus found to determine in which of the parties the title resides." Grayson v. Muckleroy, 220 Ala. 182, 124 So. 217, 220; Hinds v. Federal Land Bank of New Orleans, 235 Ala. 360, 179 So. 194; Reeder v. Cox, supra; Adler v. Sullivan, 115 Ala. 582, 22 So. 87.
The merits of appellants' claim of adverse possession were, therefore, put to issue by appellee's showing of good paper title and his categorical denial in the answer to the bill of complaint as last amended of each and every allegation thereof, including those setting up adverse possession. The allegations of adverse possession were not admitted by such a denial, as appellants contend is the case by applying Equity Rule 25, Appendix, Title 7, Code 1940. Facts relative to the matter of adverse possession would be within the peculiar knowledge of the appellants, not the appellee.
In the last analysis, the case is reduced to a question of fact—are all the required elements of title by adverse possession present? Appellee says that the evidence shows that the possession of appellants was permissive, that is, that S. M. Pate, who had bought the mortgage, allowed the appellants to remain on the land with the idea that they would at some time buy the property back from him. But appellants reply with the argument that such a theory of permissive use to negate the adverse possession should have been specially pleaded by the appellee and that in the absence of such a plea, evidence relative to permissiveness of the use of the land by appellants has no effect. We are in disagreement with such a theory. We quote the applicable rule from the case of Dothard v. Denson, 72 Ala. 541:
This principle was reaffirmed in White v. Williams, 260 Ala. 182, 69 So.2d 847. This last cited case also gave expression to the principle that a permissive possession does not ripen into title unless there has been such a repudiation of the permissive possession as to afford notice of an adverse claim. In further illucidating the principle it was also held: Limitations begin to run from the date of notice of hostility but are not operative before hostility is shown, and whether the possession was with the intention of claiming title is generally held to be a question of fact; a permissive occupant cannot change his possession into adverse title no matter how long possession may be continued, in the absence of a clear, positive and continuous disclaimer and disavowal of the title of the true owner brought home to the latter's knowledge; there must be either actual notice of the hostile claim or acts or declarations of hostility so manifest and notorious that actual notice will be presumed in order to change a permissive or otherwise non-hostile possession into one that is hostile.
This Court has repeatedly held that where one claims title to land through an unbroken chain of record title against another who relies upon adverse possession under color of title, a very strict burden to establish his title rests upon the one claiming adverse possession. Hagan v. Crowley, 265 Ala. 291, 90 So.2d 760; Spradling v. May, 259 Ala. 10, 65 So.2d 494; Duke v. Harden, 259 Ala. 398, 66 So.2d 899. We said in Spradling v. May, supra [259 Ala. 10, 65 So.2d 498]:
See also Walthall v. Yohn, 252 Ala. 262, 40 So.2d 705; Turnipseed v. Moseley, 248 Ala. 340, 27 So.2d 483, 170 A.L.R. 882.
Neither was it necessary for appellee to plead that he was a bona fide purchaser without notice of the purported adverse possession. It is true that the general rule is that one who would assert that he is an innocent purchaser without notice must so aver in his pleading, and this rule applies to a respondent in a proceeding under the statute to quiet title. Reeder v. Cox, supra. Cf. Behan v. Friedman, supra. It would seem that it would beg the question here to require appellee to do so when adverse possession, vel non, is at issue in the case. One should not be required to plead bona fide purchase without notice of adverse possession at the same time he is denying the adverseness of such possession. It is clear that appellee does not come under the classification of "one who would assert that he is an innocent purchaser".
We do not think appellants sustained their burden of establishing title by adverse possession. The testimony taken orally before the court below was in conflict, and, having considered it very carefully, we must say that the trial judge was authorized to conclude from the evidence adduced that the possession of appellants was permissive and that there had not been such a repudiation of the permissive possession as to afford notice of an
Appellants apparently place significance to a statement made by counsel for appellee during the taking of testimony from Willie Stewart on direct examination. The witness had been asked about some discussions he had had with the respondent concerning the subject property when the following question was posed:
And in the ensuing colloquy counsel for appellee said, "we will stipulate that Munn Steward (sic) [tenant in common with appellants] owned these lands". In the absence of a showing in the record that the lands referred to were the same as the subject parcels, we must presume the obvious—that the counsel for appellee was speaking of some other land adjoining and that he did not admit a fact inconsistent with appellee's primary position. We must also presume that this statement was noticed by the lower court and was given due consideration along with the testimony in arriving at his conclusion.
Since the case is due to be affirmed, we do not reach the matters of accounting, discovery, and other affirmative relief for which prayer was made in appellants' bill.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.