This is an appeal from a final decree of the circuit court of Jefferson County, in equity, Bessemer Division, rendered in a statutory proceeding in rem (brought pursuant to Code 1940, Tit. 7, § 1116, et seq., as amended by Act No. 882, appvd. Sept. 12, 1951, Acts 1951, p. 1521) quieting title to the SE ¼ of the NW ¼ of Sec. 18, Tp. 18 South, Range 5 West, lying East of Rock Creek, in said county. The original suit was brought by Woodward Iron Company, appellee, against Edith McClain Schwartz and Nancy C. McClain, appellants, and others, to have the title to the minerals and mining rights in said lands quieted in it. Appellants filed a cross-bill to have title to the entire fee quieted in them (Mrs. Schwartz claiming complete title subject only to the dower rights of Mrs. McClain, as the widow of D. S. McClain, the father of Mrs. Schwartz). The trial court quieted title to the minerals and mining rights in appellee and the surface in appellants. This appeal is from that decree.
We are concerned on this appeal only with that part of the decree quieting title to the minerals and mining rights. Whether the cross-bill, in seeking to quiet title to the surface, is, in that respect, germane to the original suit, and whether it was error to quiet title to the surface in appellants, are questions not presented for review.
Appellants' insistence is that title to the minerals and mining rights should have been quieted in them because they hold the older color of title, consisting of a tax deed, recognized as being invalid, which D. S. McClain, their predecessor in title, acquired from the judge of probate of Jefferson County, on August 25, 1894, and recorded in the probate office of said county on August 27, 1894. On the other hand, appellee says that the trial court correctly quieted title to such interest in it because it held better color of title than the invalid tax deed relied on by appellants; its said color of title being a deed executed by Birmingham Coal and Iron Company in appellee's favor on April 4, 1912, recorded in the probate office of Jefferson County on April 11, 1912, and containing covenants of seizin and warranty of title. There appears to be no dispute that both appellants and appellee paid taxes on the minerals and mining rights for a period of ten or more consecutive years next preceding the filing of their respective bills, nor is there any question that both the original bill and the cross-bill (see § 1125, Tit. 7, as amended) meet the requirements of §§ 1116 and 1117, Tit. 7, as amended, prescribing when a bill may be filed (§ 1116) and what it should contain (§ 1117).
Section 1116, as amended, provides, in pertinent parts, as follows:
There appears to be no question that title by adverse possession has not been established either by appellants or by appellee, nor have said parties, as against each other, established either prima facie or conclusive evidence of title under the provisions of § 1123, Tit. 7, as amended, providing as follows:
Boiled down, the question before us is whether, as between appellee and appellants, the better title rests with one or the other. It is our view that neither has established a better title than the other, although both have established conclusive evidence of title to the minerals and mining rights under § 1123, Tit. 7, as amended, against the other parties to the proceedings. In the fairly recent case of Rollan v. Posey, 271 Ala. 640, 126 So.2d 464, 467, there was involved a question concerning the superiority as between two colors of title not emanating from a common source (as in the instant case) and neither coming from a grantor in possession (as in the instant case). What was there said is conclusive
While there is some evidence bearing on the reformation of deeds in appellee's chain of title which, if accomplished, would have the effect of giving appellee the record title to the minerals and mining rights, we do not gather from the record that this was the basis for the relief sought by appellee nor for the decree granting such relief. As said in Weston v. Weston, 269 Ala. 595, 599, 114 So.2d 898, 900: "A case will not be reviewed on a theory different from that on which it was tried." We think it would be preferable, if there is any question of reformation, to present such question to the trial court for determination upon appropriate pleadings and proof to that end.
The decree, to the extent that it quiets title to the minerals and mining rights in favor of appellee as against appellants, is reversed and the cause is remanded. In other respects, the decree is affirmed.
Reversed in part, affirmed in part, and remanded.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur.