REL: 09/19/2014




Notice: This opinion is subject to formal revision before publication in the advance
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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1130530
                             ____________________

             David Childers and Robert DeShawn Childers

                                           v.

                                    Leroy Darby

                  Appeal from Lauderdale Circuit Court
                             (CV-12-900223)



STUART, Justice.

      David Childers and Robert DeShawn Childers ("Shawn")

appeal the Lauderdale Circuit Court's judgment quieting title

in a certain piece of real property, on which is situated a

house, in Leroy Darby.             We reverse and remand.
1130530

                Facts and Procedural History

    In August 2012, Darby filed a complaint to quiet title in

certain real property, averring:

         "1. This action is brought pursuant to the Code
    of Alabama, 1975, as amended, § 6-6-540, et seq.,
    and 6-[6]-560, et seq.

         "The Defendant land, in which a fee simple
    ownership interest is sought, is as follows:

          "Beginning at a point on the East line of
          the Northeast 1/4 of the Northeast 1/4 of
          Section 9, Township 1 South, Range 12,
          which said point is 525 feet North of the
          Southeast corner thereof; thence West 210
          feet; thence North 315 feet; thence East
          210 feet to Section Line Road; thence South
          315 feet to the point of beginning.

         "2. [Darby] claims to have a fee simple title in
    or to the said land described hereinabove.

         "3. The land that is subject to this complaint
    was obtained by [Darby] through THE PROBATE COURT OF
    LAUDERDALE COUNTY, ALABAMA to [Darby] at Tax Sale
    dated May 5, 2009.

         "4. Thereafter upon application to the State
    Land Commissioner of the State of Alabama by
    [Darby], a deed was proffered to [Darby] on May 8,
    2012, the STATE OF ALABAMA proffered to [Darby] a
    deed to said parcel recorded in the office of the
    Judge of Probate of Lauderdale County, Alabama and
    recorded on RLPY 2012, PAGE 20142.

         "5. [Darby] has made a party or parties to this
    complaint, all persons against whom [Darby] claims
    title to said lands through their statutory rights
    of redemption, those being:

                              2
1130530

          "A.   BARBARA E. HOLLIS, address unknown.[1]

          "B. SHAWN CHILDERS, ---- County Road 141,
          Florence, AL 35633.

          "C.   A, B, C, AND ALL OTHER PERSONS OR
          ENTITIES CLAIMING ANY PRESENT, FUTURE,
          CONTINGENT, REMAINDER OR OTHER INTEREST IN
          THE DEFENDANT LANDS DESCRIBED HEREINABOVE,
          WHERE TRUE NAME IS UNKNOWN TO THE PLAINTIFF
          AT THE PRESENT TIME BUT WHICH WILL BE ADDED
          HERETO BY AMENDMENT WHEN ASCERTAINED.

         "6. The only person who is known to [Darby] who
    has had physical possession of said lands, or any
    part thereof since the decree of sale in May 5,
    2009, other than [Darby], is the defendant, SHAWN
    CHILDERS. [Darby], by and through his attorney of
    record, James Q. Stanphill, Jr., sent SHAWN
    CHILDERS, a written demand for possession of the
    property dated June 20, 2012. [Childers] received
    the notice via certified mail on June 28, 2012.

         "7. All persons who have at any time within 10
    years next preceding the filing of this complaint
    assesses [sic] or paid any taxes upon said lands or
    any interest therein are:

          "A.   LEROY DARBY

          "B.   BARBARA E. HOLLIS

         "8.  The age, address or legal competency of
    defendant BARBARA E. HOLLIS is unknown to [Darby].
    It is believed to be, but unknown to [Darby], that
    [Hollis] is, at the time of the filing of this
    complaint, deceased. The Defendant, SHAWN CHILDERS,
    is over the age of 19 years old, residing at ----


    1
     The recorded deed for the real property at issue named
Hollis as the owner of the property.
                               3
1130530

    County Road 141, Florence, AL 35633, and of legal
    competency. The age, address or legal competency of
    any other of the hereinabove persons is unknown to
    [Darby].

          "....

         "WHEREFORE FROM THE ABOVE STATED PREMISES,
    [Darby] requests that this Honorable Court take
    jurisdiction over this cause of action and issue all
    orders, notices, demand all publications and take
    all such other actions necessary so as to set a date
    for hearing to quiet title to the above described
    property into [Darby]."

(Capitalization in original.)   The complaint was subsequently

amended to name Martha Creasy, Leslie Creasy's widow, and

their children –- Tina Creasy, Robert Creasy, and Roy Creasy

–- as defendants.2

    Shawn answered the complaint.    A trial was conducted on

two separate days.   After the first day, the trial court

entered the following order:

         "This cause came before the Court on complaint
    to quiet title, Defendants Barbara Hollis, Martha
    Creasy, Tina Creasy, Robert Creasy, and Roy Creasy
    were served by publication but failed to appear.
    Defendant Robert DeShawn Childers did appear pro se.

        "[Darby] presented evidence from Clint Wilkes,
    an abstractor, that the title to the property in


    2
     A title search established that Hollis had been deeded
the property by Martha Creasy, who had inherited the property
at her husband's death.
                                4
1130530

    question, according to the courthouse records, is
    vested in Barbara Hollis subject to a tax lien and
    tax deed in favor of Leroy Darby. [Darby] testified
    that he bought the property at a tax sale in March
    2009. He has driven by the property but has never
    been on the property. To his knowledge the house
    located on the property is occupied by [Shawn] whose
    name appears nowhere in the title records. No one
    has ever made any effort to redeem the property.

         "[Darby] rested his case and the court allowed
    [Shawn] to testify in his own behalf.[3] [Shawn]
    claimed that his father, who is now age 85, bought
    the property at a foreclosure sale in 1995 although
    he had no firsthand knowledge of this fact. He was
    unable to tell the court from whom it was purchased.
    [Shawn] further claimed that on a previous occasion
    a person tried to evict him from the property
    claiming they had bought the land at a tax sale but
    a circuit judge in this circuit ruled the tax deed
    was invalid. He was unable to tell the court the
    names of the litigants, the court case number, or
    the time frame for such suit.

         "[Shawn] requested additional time to gather his
    evidence. Motion granted. The balance of this case
    is continued ... for [Shawn] to present any evidence
    he has of his claim to title."

    Shawn     retained   counsel   and   moved   the   trial   court,

pursuant to Rule 19, Ala. R. Civ. P., to join David Childers,

his father, as a defendant in the action.          The trial court

granted the motion, and David was added as a party to the

action.


    3
        Shawn testified that he had resided on the property since
2000.
                                   5
1130530

    On December 3, 2013, the trial resumed.   The trial court

admitted into evidence the deposition of David, who testified

that, at a foreclosure sale in 1995, he had purchased the real

property at issue, which consisted of 2.7 acres and on which

was situated a two-bedroom house with various outbuildings.

He stated that he had repaired the house, had cleaned up the

yard, and had used the surrounding land to train his horses

from 1995 through 2003 or 2004.     He explained that he had

filed a deed reflecting his ownership of the property but that

he had never paid taxes on the property because he had been

informed by the "tax office" that he was exempt from taxes

because he was 65 years old and totally disabled.   According

to David, his son Shawn has lived on the property since 2000.

In support of his testimony, David presented a statement from

the Florence Utilities Department indicating that in 1995

electricity had been connected to the house in his name and

that the account for electrical service to the house has

remained in his name.

    Evidence was also presented indicating that the deed

filed by David was not for the property at issue but for an

adjoining one-acre lot.    A copy of a quitclaim deed from


                              6
1130530

Martha Creasy and one of her sons transferring the one-acre

lot adjoining the property at issue to David was admitted into

evidence.            Additionally,        a     mortgage-foreclosure         deed

indicating that the one-acre lot owned by David had been

foreclosed      on    in   2004    was    admitted       into    evidence,   and

additional evidence was admitted indicating that that property

had subsequently been sold several times.

     After considering the testimony and other evidence, the

trial court quieted title in the real property, including the

house, in Darby.        Shawn and David moved for a new trial or, in

the alternative, to alter, amend, or vacate the judgment,

arguing, among other grounds, that the trial court had erred

in   quieting     title    in     Darby       because,   they    asserted,   the

evidence    did      not   establish      that     Darby   was    in   peaceable

possession of the property.                    The trial court denied the

motion, and Shawn and David appealed.

                            Standard of Review

          "In an action to quiet title, when the trial
     court hears evidence ore tenus, its judgment will be
     upheld unless it is palpably wrong or manifestly
     unjust.   Mid–State Homes, Inc. v. King, 287 Ala.
     180, 249 So. 2d 836 (1971); and Webb v. Griffin, 243
     Ala. 468, 10 So. 2d 458 (1942). However, the
     presumption of correctness does not attach to a
     trial court's conclusions of law.            Cullman

                                          7
1130530

    Wholesale, Inc. v. Simmons, 592 So. 2d 1031, 1034–35
    (Ala. 1992); Gaston v. Ames, 514 So. 2d 877, 878
    (Ala. 1987); Smith v. Style Adver., Inc., 470 So. 2d
    1194 (Ala. 1985); and League v. McDonald, 355 So. 2d
    695 (Ala. 1978)."

Woodland Grove Baptist Church v. Woodland Grove Cmty. Cemetery

Ass'n, 947 So. 2d 1031, 1036 (Ala. 2006).

                           Analysis

    First, Shawn and David maintain that the complaint filed

by Darby did not satisfy the statutory pleading requirements

to invoke the trial court's jurisdiction over a quiet-title

action.   They contend that the complaint is deficient because

Darby did not aver specifically that he was in peaceable

possession of the real property.

    Section 6-6-540, Ala. Code 1975, provides:

         "When any person is in peaceable possession of
    lands, whether actual or constructive, claiming to
    own the same, in his own right or as personal
    representative or guardian, and his title thereto,
    or any part thereof, is denied or disputed or any
    other person claims or is reputed to own the same,
    any part thereof, or any interest therein or to hold
    any lien or encumbrance thereon and no action is
    pending to enforce or test the validity of such
    title, claim, or encumbrance, such person or his
    personal   representative   or   guardian,   so   in
    possession, may commence an action to settle the
    title to such lands and to clear up all doubts or
    disputes concerning the same."



                               8
1130530

       Rule 8, Ala. R. Civ. P., provides that a complaint is

sufficient if it puts a defendant on notice of the claims

asserted against him or her.             A rule or statute, however, may

qualify the rule of generalized notice pleading.                      Bethel v.

Thorn, 757 So. 2d 1154, 1158 (Ala. 1999).                      Section 6-6-541,

Ala.    Code    1975,    sets    forth       the    required    contents   of   a

complaint in a quiet-title action, stating:

            "The complaint authorized by Section 6-6-540
       must describe the lands with certainty, must allege
       the possession and ownership of the plaintiff and
       that the defendant claims, or is reputed to claim,
       some right, title, or interest in, or encumbrance
       upon, such lands and must call upon him to set forth
       and specify his title, claim, interest, or
       encumbrance and how and by what instrument the same
       is derived and created."

       In this case, although Darby did not include the term

"peaceable possession" in his complaint, the complaint on its

face satisfied the statutory requirements for pleading a

quiet-title action.         In the complaint, Darby identified the

statute, § 6-6-540, Ala. Code 1975, pursuant to which his

action    was    filed     and    alleged          facts   demonstrating    his

possession      of   the    property.              Darby   included   a    legal

description of the property, stated that he had purchased the

property through a tax sale conducted by the Lauderdale


                                         9
1130530

Probate Court in 2009, stated that he had obtained from the

State a deed to the property in May 2012, identified the

parties that might have claim to the property through their

statutory rights of redemption, identified Shawn as the only

person to his knowledge who had had physical possession of the

property, and requested that the trial court conduct a hearing

to quiet title to the property.          Those averments by Darby

satisfy the requirements of Rule 8, Ala. R. Civ. P., and § 6-

6-541, Ala. Code 1975, for pleading a quiet-title action.

       Next, Shawn and David contend that the trial court erred

in quieting title in Darby because, they say, the evidence

does not support the trial court's finding that Darby was in

peaceable possession of the property, as required by § 6-6-

540,    at   the   time   he     filed   his   quiet-title    action.

Specifically, Shawn and David maintain that because Shawn was

in actual possession of the property at the time Darby filed

his complaint, Darby was not in peaceable possession of the

property.

       To establish a prima facie case in a quiet-title action,

the plaintiff must prove that he or she is in peaceable

possession    of   the    real    property.    §   6-6-540.   "[W]hat


                                   10
1130530

constitutes   peaceable   possession   ...   must   be   left   for

determination on the facts of each particular case."       Webb v.

Griffin, 243 Ala. 468, 471, 10 So. 2d 458, 460 (1942).

    The term "peaceable possession" was defined as follows in

George E. Wood Lumber Co. v. Williams, 157 Ala. 73, 76-77, 47

So. 202, 203 (1908):

         "So the question arises, what is peaceable
    possession?    It cannot mean that it is peaceable
    unless there be some legal proceeding in progress to
    test the title or right to possession; for the
    object of the statute is to allow the party who is
    in possession, and who cannot force the adversary
    claimant to institute any proceeding, to bring said
    party into court in order to determine whether he
    has any just claim to the property.        The word
    'peaceable,' then, refers to the character of his
    possession. So long as his possession is so clear
    that no one is denying the fact of his actual or
    constructive possession, it is peaceable, although
    some other person may be denying his right to
    possession."

    In Southern Railway Co. v. Hall, 145 Ala. 224, 226-27, 41

So. 135, 136 (1906), this Court explained that peaceable

possession may be either actual and constructive, stating:

         "The word peaceable in connection with the word
    possession is used 'as contradistinguished from
    disputed or contested possession, and that it should
    be under claim of ownership.' Adler v. Sullivan,
    115 Ala. 58[2], 22 So. 87 [(1897)].

         "'Actual possession, or possession in fact,
    exists when the thing is in the immediate occupancy

                               11
1130530

    of the party, or his agent or tenant,' is synonymous
    with pedis possessio. 28 Am. & Eng. Ency. Law, (2d
    Ed.) 238.

         "'Constructive possession, a possession in law,
    it is sometimes called, is that possession which the
    law annexes to the legal title or ownership of
    property, when there is a right to the immediate
    actual possession of such property, but no actual
    possession.' [Id. at] 239.

         "'When one has a legal estate in fee in land, he
    has the constructive possession, unless there is an
    actual possession in some one else.' It is founded
    on the existence of title, in some form. [Id.]"

    With    regard   to   constructive   possession,   a   person

demonstrates that he or she is in constructive possession of

real property if he or she has a legal estate in fee in the

real property and no one is in actual possession of the

property.   Hinds v. Slack, 293 Ala. 25, 299 So. 2d 717 (1974);

Barry v. Thomas, 273 Ala. 527, 142 So. 2d 918 (1962); and

George E. Wood Lumber Co. v. Williams, supra.

    A review of the evidence establishes that the trial court

erred in quieting title in Darby because the evidence does not

establish that Darby was in peaceable possession of the

property.   Darby's testimony that he had only driven past the

property several times but had never walked the property or

obtained actual possession of the property established that he


                               12
1130530

was not in actual possession of the property.            The evidence

further established that, although Darby had legal title to

the property, Shawn was living on the property.            Therefore,

because Shawn was in actual possession of the property, the

evidence   did   not   establish    that   Darby   had   constructive

possession of the property. Southern Ry. v. Hall, supra.

    Because the evidence does not demonstrate that Darby had

either actual or constructive peaceable possession of the

property and because title may not be quieted in one who does

not have peaceable possession, the trial court erred in

quieting title in Darby.    Dennison v. Claiborne, 289 Ala. 69,

265 So. 2d 853 (1972); and     Chestang v. Tensaw Land & Timber

Co., 273 Ala. 8, 134 So. 2d 159 (1961).

    Darby also filed his action pursuant to § 6-6-560, Ala.

Code 1975; however, he cannot satisfy the requirements of

that statute either.

    Section 6-6-560 provides:

         "When any person, natural or artificial, claims,
    either in his own right or in any representative
    capacity whatsoever, to own any lands or any
    interest therein, and is in the actual, peaceable
    possession of the land, or if neither he nor any
    other person is in the actual possession of the
    lands and he holds, and has held, color of title to
    the lands, or interest so claimed, for a period of

                                   13
1130530

    10 or more consecutive years next preceding and has
    paid taxes on the lands or interest during the whole
    of such period, or if he, together with those
    through whom he claims, has held color of title and
    paid taxes on the land or interest so claimed during
    the whole of such period of time, or if he and those
    through whom he claims have paid taxes during the
    whole of such period of 10 years on the lands or
    interest claimed and no other person has paid taxes
    thereon during any part of said period, he may, if
    no action is pending to test his title to, interest
    in or his right to the possession of such lands,
    file a verified complaint in the circuit court of
    the county in which such lands lie against said
    lands and any and all persons claiming, or reputed
    to claim, any title to, interest in, lien, or
    encumbrance on said lands, or any part thereof, to
    establish the right or title to such lands or
    interest and to clear up all doubts or disputes
    concerning the same."

Section 6-6-560 is applicable when either the plaintiff is in

actual peaceable possession of the property or no one is in

actual possession of the property.   Fitts v. Alexander, 277

Ala. 372, 375, 170 So. 2d 808, 810 (1965). Here, the evidence

established that Darby was not in actual possession of the

property and that Shawn was in actual possession of the

property; therefore, Darby's evidence did not establish a

prima facie case under § 6-6-560, and Darby is not entitled to

title being quieted in him under that statute.

    Lastly, this Court recognizes that if a defendant has

answered a plaintiff's quiet-title action and the evidence

                             14
1130530

shows   that   the   defendant   has   the   better   title   and   has

peaceable possession, then a trial court has the authority to

quiet title in the defendant.          Chestang v. Tensaw Land &

Timber Co., 273 Ala. at 18, 134 So. 2d at 169.           A review of

the record, however, does not establish that either Shawn or

David has peaceable possession of the property or that either

Shawn or David had acquired title to the property by adverse

possession, see Cagle v. Hammond, 51 So. 3d 150 (Ala. Civ.

App. 2010); therefore, the record does not support a judgment

quieting title in either Shawn or David.

                            Conclusion

    Based on the foregoing, the judgment of the trial court

is reversed and the case is remanded.

    REVERSED AND REMANDED.

    Parker and Wise, JJ., concur.

    Moore, C.J., concurs specially.

    Shaw, J., concurs in the result.




                                 15
1130530

MOORE, Chief Justice (concurring specially).

    I concur with the holding in the main opinion that Leroy

Darby's   quiet-title   action   fails   based   on   his   lack   of

peaceable possession of the property at issue. I note that, in

a case such as this, when a party has legal title to a

property, but another person is in actual possession, the

person claiming title may bring "an action in the nature of an

action of ejectment." § 6-6-280(a), Ala. Code 1975. The

complaint in such an action "for the recovery of land or the

possession thereof ... is sufficient if it alleges that the

plaintiff was possessed of the premises or has the legal title

thereto ...." § 6-6-280(b), Ala. Code 1975 (emphasis added).

    "In a statutory action in the nature of ejectment a

plaintiff may recover by showing legal title to the premises

sued for at the time of the commencement of the suit and the

right to immediate possession." Atlas Subsidiaries of Florida,

Inc. v. Kornegay, 288 Ala. 599, 601, 264 So. 2d 158, 161

(1972). "Ejectment is a favored action for the trial of title

to land." Kelley v. Mashburn, 286 Ala. 7, 9, 236 So. 2d 326,

327 (1970).




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