REL: 09/19/2014

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter
. Readers are requested to notify the Reporter of Decisions , Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter
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# SUPRE ME CO URT O F ALA BAMA

SPECI AL TE RM, 2 014

_____ _____ _____ _____ 11305 30

_____ _____ _____ _____ David Chil ders and R obert DeSh awn C hilde rs

v. Leroy Darb y Appea l fro m Lau derda le Ci rcuit Cour t

(CV-1 2-900 223)

STUAR T, Ju stice
. David Child ers and Rober t DeSha wn Child ers ("Sh a w n ")
appea l the Laude rdale Circu it Court 's judgm ent quiet ing title
in a certa in piece of real prope rty, on w h i c h i s situa ted a house , in Leroy Darb y. W e rev erse and r emand
.11305 30
Facts and Proce dural Hist ory

In Augus t 2012, Darby filed a compl aint to quiet title in
certa in re al pr opert y, av errin g:

"1. This actio n is broug ht pursu ant to the Code of Alaba ma, 1975, as amend e d , § 6-6-5 40, et seq., and 6 -[6]- 560, et se q. "The Defen dant land, in whic h a fee simpl e owner ship inter est i s sou ght, is as foll ows: "Begi nning at a point on the Eas t line of the North east 1/4 of the North east 1/4 of Secti on 9, Towns hip 1 South , Range 12, w h ich said point is 525 feet North of th e South east corne r there of; thenc e West 210 feet; then c e North 315 feet; thenc e East 210 feet to Secti on Line Road; thenc e South 315 f eet t o the poin t of begin ning.
"2. [Darb y] claim s to have a fee simpl e title in or to the said land descr ibed herei nabov e. "3. The land that is subje ct to this compl aint was obtai ned by [Darb y] throu gh THE PROBA TE COURT OF LAUDE RDALE COU N T Y, ALABA MA to [Darb y] at Tax Sale dated May 5, 20 09.
"4. There after upo n a p plica tion to the State Land Commi ssion er o f t h e State of Alaba ma by [ D a rby], a deed was proff ered to [Darb y] on May 8 , 2012, the STATE OF ALABA MA pro f f ered to [Darb y] a d e e d t o said parce l recor ded in the offic e of the Judge of Proba te of Laude rdale Count y, Alaba ma an d recor ded o n RLP Y 201 2, PA GE 20 142.
"5. [Darb y] has made a party or parti es to this compl aint, all pe r sons again st whom [Darb y] claim s title to said lands throu gh their statu tory right s of re dempt ion, those bein g:
211305 30 "A. BARBA RA E. HOLLI S, addre ss unkno wn. [ 1 ]
"B. SHAWN CHILD ERS, ---- Count y Road 141, Flore nce, AL 35 633.

" C
. A, B, C, AND ALL OTHER PERSO NS O R ENTIT IES CLAIM ING ANY PRESE NT, F U TURE, CONTI NGENT , REMAI NDER OR OTHER INTER EST IN THE DEFEN DANT LANDS DESCR IBED HEREI NABOV E, WHERE TRUE NAME IS UNKNO WN TO THE PLAIN TIFF AT THE PRESE NT TIME BUT WHICH WILL BE ADDED HERET O BY AMEND MENT WHEN ASCER TAINE D. "6. The only perso n who is known to [Darb y] who has had phys i c al posse ssion of said lands , or any part there of since the decre e of s a le in May 5, 2 0 0 9, other than [Darb y], is the defen dant, SHAWN CHILD ERS. [Darb y], b y and throu gh his attor ney of recor d, James Q. Stanp hill, Jr., sent SH AWN CHILD ERS, a writt en deman d for posse ssion o f t h e prope rty dated June 20, 2012
. [Chil ders] recei ved the n otice via certi fied mail on Ju ne 28 , 201 2.
"7. All perso ns who have at any time withi n 10 years n e xt prece ding the filin g of this compl aint asses ses [sic] or paid any taxes upon said lands or any i ntere st th erein are: "A. LEROY DARB Y
"B. BARBA RA E. HOLL IS "8. The age , a ddres s or legal compe tency of defen dant BARBA RA E. HOLLI S is unkno wn to [Darb y]. It is belie ved to be, but unkno w n t o [Darb y], that [Holl is] is , a t the time of the filin g of this compl aint, decea sed. The Defen dant, SHAWN CHILD ERS, is over t h e age of 19 years old, resid ing at

----

The recor ded deed for t h e r eal prope rty at issue named 1 Holli s as the o wner of th e pro perty
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Count y Road 141, Flore nce, AL 35633 , and o f legal compe tency
. The age, addre ss or legal compe tency of any other of the herei nabov e perso ns i s unkno wn to [Darb y].
"....
"WHER EFORE FROM THE ABOVE STATE D PREMI SES, [Darb y] reque s t s t hat this Honor able Court take juris dicti on over this cause of actio n and issue all order s, notic es, deman d all publi c ation s and take all such other actio ns neces sary so as to set a date for heari ng to quiet ti t l e to the above descr ibed prope rty i nto [ Darby ]." (Capi taliz ation in origi nal.) The compl aint was subse quent ly
amend ed to name M a rtha Creas y, Lesli e Creas y's widow , and their chil dren –- Ti na Cr easy, Robe rt Cr easy, and Roy C reasy

–- as defe ndant s. 2
Shawn answe red t h e c o mplai nt. A trial was condu cted on
two separ ate days. After the first day, the trial court
enter ed th e fol lowin g ord er:

"This cause came befo r e the Court on compl aint to quiet title , Defen d ants Barba ra Holli s, Marth a Creas y, Tina Creas y, Rober t Cre asy, and Roy Creas y were serve d by publi catio n b u t f ailed to appea r. Defen dant Rober t DeSha wn Child ers did appea r pro se. "[Dar by] prese nted evide nce from Clint Wilke s, an abstr actor , t h a t the title to the prope rty in

A title searc h e s tabli shed that Holli s had been deede d 2 the prope rty by Marth a Creas y, who had inher ited the prope rty at he r hus band' s dea th. 411305 30

quest ion, accor ding to the court house re cords , is veste d in Barba ra Hol l i s subje ct to a tax lien and tax deed in favor of Leroy Darby
. [Darb y] testi fied that he bough t the prope rty at a tax sale in March 2009. He has drive n by the prope rty but has never been on the prope rty. To his knowl ed g e t h e house locat ed on the prope rty is occup ied by [Shaw n] whose name appea rs nowhe re in t h e title recor ds. No one has e ver m ade a ny ef fort to re deem the p roper ty. "[Dar b y ] reste d his case and the court allow ed [Shaw n] to testi fy in his own behal f. [ S h awn] [ 3 ] claim ed t h a t his fathe r, who is now age 85, bough t the prope rty at a foreclos ure sale in 1995 altho ugh he had no first hand knowl edge of this fact. He was unabl e to tell the court from whom it was purch ased. [Shaw n] furth er claim ed that on a previ ous occas ion a perso n trie d t o e vict him from the prope rty claim ing they had bough t the land at a tax sale but a circu it judge in this cir c u i t ruled the tax deed was inval id. He was unabl e t o t ell the court the n ames of the litig ants, the court case numbe r, o r the t ime f rame for s uch s uit. "[Sha wn] reque sted addit ional time to gathe r his evide nce. Motio n grant ed. The balan ce of this case is conti nued
... for [Shaw n] to prese nt any evide nce he ha s of his c laim to ti tle."
Shawn retai ned couns el and moved the trial cou r t,
pursu ant to Rule 19, Ala. R. Civ. P., to join David Child ers, his fathe r, as a defen dant in t h e a c t ion. The trial court grant ed the m o t i o n , and David was added as a party to the actio n.

Shawn testi fied that he had resid ed on the prope rty since 3 2000. 511305 30

On Decem ber 3, 2013, the trial resum ed. The trial court admit ted into evide nce the depos ition of David , who testi fied that, at a forec losur e sale in 1995, he had purch ased the real
prope rty a t iss ue, w hich consi sted of 2. 7 acr es an d on which

was situa ted a two-b e d room house with vario us outbu ildin gs.
He st ated that he ha d rep aired the house , had clea ned u p the yard, and had use d t h e surro undin g land to train his horse s from 19 9 5 t h r o ugh 2003 or 2004. He expla ined that he had filed a deed refle cting his owner ship of the prope rty but that
he had neve r p a i d t a xes on the prope rty becau se he had been infor med by the "tax offic e" that he was exemp t from taxes
becau se he was 65 ye ars o ld an d tot ally disab led. Acco rding
to David , his son Shawn has lived on the prope rty since 2000.
In suppo rt of his testi mony, David prese nted a state ment from
the Flore nce Utili ties Depar tment indic ating that i n 1 995

e l e c trici ty had been conne cted to the house in his name an d
that the accou nt for elect rical servi ce t o t h e house has remai ned i n his name . Evide nce was also prese nted indic ating that the d e ed filed by David was not for the prope rty at issue b u t f or an adjoi ning one-a cre lot. A copy of a quitc laim deed from

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Marth a Creas y and one of her s ons trans ferri ng the one-a cre lot adjoi ning the prope rty at issue to David was admit ted into evide nce. Addit ional ly, a mortg age-f orecl osure deed indic ating that the on e - a c r e lot owned by David had been
fo r e c l o s ed on in 2004 was admit ted into evide nce, and addit ional evide nce was admit ted indic ating that that prope rty
had s ubseq uentl y bee n sol d sev eral times
. After c o n s ideri ng the testi mony and other evide nce, the trial court quiet ed title in the real prope rty, inclu ding the
house , in Darby
. Shawn and David moved for a new trial or, in
the alter nativ e, to alter , amend , or vacat e the judgm ent, argui ng, a mong other grou nds, that the t rial court had erred
in quiet ing title in Darby becau se, they asser t e d , the evide nce d i d n o t estab lish that Darby was in peace able
posse ssion of the prope rty. The trial court denie d the motio n, an d Sha wn an d Dav id ap peale d.
Stand ard o f Rev iew
"In an actio n to quiet tit l e , when the trial court hears evide nce ore tenus , its judgm ent will be uphel d unles s it i s palpa bly wrong or manif estly unjus t. Mid–S tate Homes , Inc. v. Kin g , 287 Ala. 180, 249 So. 2d 836 (1971 ); and Webb v. Griff in, 243 Ala. 468, 10 So. 2d 458 (1942 ). Howev er, the presu mptio n of corre ctnes s does not attac h to a trial court 's concl usion s of law. Cullm an
711305 30

Whole sale, Inc. v. Simmo ns, 592 So. 2d 1031, 1034– 35 (Ala. 1992) ; Gasto n v. Ames, 514 So. 2d 877, 878 (Ala. 1987) ; Smith v. Style Adver ., Inc., 470 So. 2d 1194 (Ala. 1985) ; and Leagu e v. McDon ald, 355 So. 2d 695 ( Ala. 1978) ."
Woodl and Grove Bapti st Churc h v. Woodl and Grove Cmty. Cemet ery Ass'n , 947 So. 2d 10 31, 1 036 ( Ala. 2006)
. Analy sis First , Shawn and David maint ain that the compl aint filed by Da rby d id no t sat isfy the s tatut ory p leadi ng re quire ments
to invok e the trial court 's juris dicti on over a quiet -titl e actio n. They conte nd that the compl aint is defic ient becau se Darby did not aver speci fical ly that h e w a s in peace able
posse ssion of t he re al pr opert y. Secti on 6- 6-540 , Ala . Cod e 197 5, pr ovide s: "When any perso n is in peace able posse s s ion of lands , wheth e r actua l or const ructi ve, claim ing to o wn the same, in his own right or as per s o n a l repre senta tive or guard ian, and his title there t o, or any part there of, i s d e n i ed or dispu ted or any other perso n claim s or is reput e d t o own the same, any part there of, or any inter est there in or to hold a n y lien or encum branc e there on and no actio n is p e n d i ng to enfor ce or test the valid ity of such title , claim , or encum branc e, such perso n o r h i s perso nal repre senta tive or guard ian, so in posse ssion , may comme nce an actio n to s e t tle the title to such lands and to c l e a r up all doubt s or dispu tes c oncer ning the s ame."

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Rule 8, Ala. R. Civ
. P
. , provi des that a compl aint is suffi cient if it puts a d e f e n dant on notic e of the claim s

asser ted again st him or her. A rule or statu te, howev er, may quali fy the rule of gener alize d notic e plead ing. Bethe l v. Thorn , 757 S o . 2 d 1154, 1158 (Ala. 1999)
. Secti on 6-6-5 41,
Ala. Code 197 5 , s ets forth the requi red conte nts of a compl aint in a quiet -titl e act ion, stati ng:

"The compl aint autho rized by Secti on 6-6-5 40 must descr ibe the lands with certa inty, must alleg e the posse ssion and owner ship of t h e plain tiff and that the defen dant claim s , or is reput ed to claim , some right , title , o r inter est in, or encum branc e upon, such lands and must call upon him to set forth and speci fy his title , claim , inter est, or encum branc e and how and by what instr ument the same is de rived and creat ed."
In this case, altho ugh Darby did not inclu de th e term "peac eable posse ssion " in his compl aint, the compl aint on its
face satis fied the statu tory requi remen ts for p leadi ng a quiet -titl e actio n. In the compl aint, Darby ident ified the
statu te, § 6-6-5 40, Ala. Cod e 1 9 7 5, pursu ant to which his actio n was filed and alleg ed facts demo n strat ing his
posse ssion of the prope rty. Darby inclu ded a legal
descr iptio n of the prope rty, state d that he had purch ased the
prope rty throu gh a tax sale condu cted b y t he Laude rdale

911305 30

Proba te Court in 2009, state d t h at he had obtai ned from the
State a deed to the prope rty in May 2012, ident ified the parti es that might h a ve claim to the prope rty throu gh their
statu tory right s of redem ption , ide ntifi ed Sh awn a s the only
perso n to his knowl edge who had had physi cal posse ssion of the
prope rty, and reque sted that the trial court condu ct a heari ng
to quiet title to the prope rty. Those averm e n t s by Darby satis fy the requi remen ts of Rule 8, Ala. R. Civ. P., and § 6-
6-541 , Ala . Cod e 197 5, fo r ple ading a qu iet-t itle actio n. Next, Shawn and David conte nd that the trial court erred
in quiet ing title in Darby becau se, they say, the evi d e n ce does not s uppor t the tria l cou rt's findi ng th at Da rby w as in
peace able posse ssion of the prope rty, as requi red by § 6-6- 540, at the ti m e he filed his quiet -titl e actio n. Speci fical ly, Shawn and David maint ain that becau se Shawn was in ac tual posse ssion of t he pr opert y at the t ime D arby filed his compl aint, Darby was not in p eacea ble posse ssion of the
prope rty.
To estab lish a prima facie case in a quiet -titl e actio n, the plain tiff must prove that he or she i s i n peace able
posse ssion of the real prope rty. § 6-6-5 4 0
. "[W]h at

1011305 30

const itute s peace able posse ssion
... must be left for
deter minat ion on the facts of each parti cular case. " Webb v. Griff in, 2 43 Al a. 46 8, 47 1, 10 So. 2d 45 8, 46 0 (19 42).
The term "peac eable posse ssion " was defin ed as follo ws in Georg e E. Wood Lumbe r Co. v. Willi ams, 157 Ala. 73, 76-77 , 47
So. 2 02, 2 03 (1 908):

"So the quest ion arise s, what is peace able posse ssion ? It canno t mean that it is pe a c e a b l e unles s there be some legal proce eding in progr ess to test the title or r i g h t to posse ssion ; for the objec t of the statu te is to allow the party who is in posse ssion , and w h o canno t force the adver sary claim ant to insti tute any proce eding , to bring said party int o court in order to deter mine wheth er he has a n y j ust claim to the prope rty. The word
' peace able, ' then, refer s to the chara cter of h i s posse ssion
. So long as his p o s s essio n is so clear that no one is denyi ng the fact of his actua l or const ructi ve posse ssion , it is peace able, altho ugh some o t h e r perso n may be denyi ng his right to posse ssion ."
In South ern Railw ay Co. v. Hall, 145 Ala. 224, 226-2 7, 41
So. 135, 136 (1906 ), this Cour t e xplai ned that peace able
posse ssion may be ei ther actua l and cons truct ive, stati ng:

"The word peace able in conne ction with the word posse ssion is used 'as contr adist ingui shed from dispu ted or conte sted posse ssion , and that it shoul d be under c laim of owner ship. ' Adler v. Sulli van, 115 A la. 5 8[2], 22 S o. 87 [(18 97)].
"'Act ual posse ssion , or posse ssion in fact, exist s when the thing is in the immed iate occup ancy
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of the party , or his agent or tenan t,' is synon ymous with pedis posse ssio. 2 8 Am. & Eng. Ency. Law, (2d Ed.) 238.
"'Con struc tive posse ssion , a posse ssion in law, it is somet imes calle d, is that posse ssion which the law annex es to the leg a l t i tle or owner ship of prope rty, when there is a right t o the immed iate actua l posse ssion of such prope rty, but no ac t u al posse ssion .' [I d. at ] 239
. "'Whe n one has a legal estat e in fee in land, he has the const ructi ve posse ssion , unles s there is an actua l possessi on in some one else. ' It is found ed on th e exi stenc e of title , in some form. [Id. ]" With regar d to const ructi ve posse ssion , a perso n demon strat es th at he or s he is in c onstr uctiv e pos sessi on of
real prope rty if he or she has a legal estat e in fee in the
real pro p e r t y and no one is in actua l posse ssion of the
prope rty. Hinds v. Slack , 293 Ala. 25, 299 So. 2d 717 (1974 ); Barry v. Thoma s, 273 Ala. 527, 142 So. 2d 9 1 8 ( 1 9 6 2); and Georg e E. Wood Lumbe r Co. v. W illia ms, s upra.
A revie w of the evide nce estab lishe s that the trial court
erred in quiet ing title in Darby becau se the evide nce does not
estab lish that Darby was in peace able p o s sessi on of the
prope rty. Darby 's testi mony that he had only drive n past the
prope rty sever al times but had never walke d the pr o perty or obtai ned actua l posse ssion of the prope rty estab lishe d that he

1211305 30

was not in actua l posse ssion o f t he prope rty. The evide nce furth er estab lishe d that, a lthou gh Darby had legal title to
the prope rty, Shawn was l i ving on the prope rty. There fore,
becau se Shawn was in ac t ual posse ssion of the prope rty, the evide nce d i d n ot estab lish that Darby had const ructi ve
posse ssion of t he pr opert y. So uther n Ry. v. H all, supra . Becau se the evide nce does not demon strat e that Darby had eithe r a c t u a l or const ructi ve peace able posse ssion of the
prope rty and becau se title may not be quiet ed in one who does
not have peace able posse ssion , the t r i a l court erred in quiet ing title in Darby
. Denni son v. Claib orne, 289 Ala. 69,
265 S o. 2d 853 (1972 ); an d Ch estan g v. Tensa w Lan d & T imber Co., 273 A la. 8 , 134 So. 2d 15 9 (19 61). Darby also filed his actio n pursu ant t o § 6-6-5 60, Ala.
Code 1975; howev er, he canno t satis fy the requi re m e nts of
that statu te ei ther. Secti on 6- 6-560 prov ides:
"When any perso n, natur al or artif icial , claim s, eithe r in his own right or in any repre sent a t i ve capac ity whats oever , to own any l a n d s or any inter est t herei n, and is in the actua l, peace able posse ssion of the land, or if neith er he nor any other perso n is in the a c t ual posse ssion of the lands and he holds, and has held, color of title to t h e l ands, or inter est so claim ed, for a perio d of
1311305 30

10 or more conse cutiv e years next prece ding and has paid taxes on the lands or inter est durin g the whole of such perio d , o r if he, toget her with those throu gh whom he claims, has held color of title and paid taxes on the land or inter est so claim ed durin g the whole of such perio d of time, or if he and those throu gh w hom he claim s have paid taxes durin g the whole of such perio d of 10 years on the lands or inter est claim ed and no other perso n has paid taxes there on d u r ing any part of said perio d, he may, if no action is pending to test his title to, inter est in or his right to the posse ssion of such lands , file a verif ied compl ai n t in the circu it court of the count y in which such lands lie a g a i nst said lands and any and all perso ns claim ing, or reput ed to c l a i m , any title to, inter est in, lien, or encum branc e on said lands , or any part there of, to estab lish the r i g h t or title to such lands or inter est a n d to clear up all doubt s or dispu tes conce rning the same. " Secti on 6-6-5 60 is appli cable when eithe r the plain tiff is in
actua l p e a ceabl e posse ssion of the prope rty or no one is in
actu a l posse ssion of the prope rty. Fitts v. Alexa nder, 277
Ala. 372, 375, 170 So. 2d 808, 810 (1965 ). Here, the evide nce estab lishe d that Darby wa s n ot in actua l posse ssion of the
prope rty and tha t Shawn was in actua l posse ssion of the
prope rt y ; t h erefo re, Darby 's evide nce did not estab lish a prima facie case under § 6-6-5 60, and Darby is not entit led to title bein g qui eted in hi m und er th at st atute
. Lastl y, this Court recog n i z es that if a defen dant has

answe red a plain tiff' s quiet -titl e ac t i o n and the evide nce
1411305 30

shows that the defen d a n t has the bette r title and has
peace able posse ssion , then a trial court has the autho rity to quiet title in the defen dant. Chest ang v. Tensa w Land & Timbe r Co., 273 Ala. at 1 8 , 1 3 4 So. 2d at 169. A revie w of
the r ecord , how ever, does not estab lish that eithe r Sha wn or David has peace able posse ssion of the prope rty or that eithe r Shawn or D avid had a cquir ed ti tle t o the prop erty by ad verse
posse ssion , see Cagle v. Hammo nd, 51 So. 3d 150 (Ala. Civ. App. 2010) ; there fore, the recor d does not suppo rt a judgm ent quiet ing t itle in ei ther Shawn or D avid.
Concl usion
Based on t h e f orego ing, the judgm ent of the trial court is re verse d and the case is re mande d.
REVER SED A ND RE MANDE D.
Parke r and Wise , JJ. , con cur.
Moore , C.J ., co ncurs spec ially
. Shaw, J., concu rs in the resul t.

1511305 30

MOORE , Chi ef Ju stice (con curri ng sp ecial ly).
I concu r with the holdi ng in the main opini on that Leroy Darby ' s q u i e t-tit le actio n fails based on his lack of
peace able posse ssion of the prope rty at issue
. I note that, in

a c a s e such as this, when a party has legal title to a
prope rty, but anoth er perso n is in actua l po s s essio n, the
perso n claim ing title may bring "an actio n in the natur e of an

a c t i on of eject ment. " § 6-6-2 80(a) , Ala. Code 1975. Th e compl aint in su ch an acti on "f or th e rec overy of l and o r the
pos s essio n there of
... is suffi cient if it alleg es that the plain tiff was posse ssed of the premi ses or has the legal title
there to .. .." § 6-6- 280(b ), Al a. Co de 19 75 (e mphas is ad ded).
"In a statu tory acti o n i n the natur e of eject ment a plain tiff may r ecove r by showi ng le gal t itle to th e pre mises
sued for a t the time of t he co mmenc ement of t he su it an d the right to immed iate posse ssion ." Atlas Subsi diari es of Flori da,
Inc. v. Korne gay, 288 Ala. 599, 6 0 1 , 2 64 So. 2d 158, 161 (1972 ). "Ejec tment is a favor ed actio n for the trial of title
to la nd." Kelle y v. Mashb urn, 286 A la. 7 , 9, 236 S o. 2d 326, 327 ( 1970)
.

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