REL: 09/19/2014 

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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:

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"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 ----

The recorded deed for the real property at issue named 1

Hollis as the owner of the property. 

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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

A title search established that Hollis had been deeded

2

the property by Martha Creasy, who had inherited the property

at her husband's death. 

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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. [Shawn] [3]

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.

Shawn testified that he had resided on the property since 3

2000.

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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

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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

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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."

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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

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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

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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

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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

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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

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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

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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.

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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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