The bill in this cause was filed by appellant against J. W. Trapp and J. F. Lauderdale, and as last amended was one to quiet title under the statute. Section 9905 et seq., Code of 1923.
Complainant, with respondents and a number of others, organized an unincorporated association known as the Farmers' Union Warehouse Company. A warehouse was purchased by the company in the town of Phil Campbell. The company became indebted beyond its capacity to pay. Complainant, with respondents and one other stockholder (as they were so designated), were indorsers on the note which was in an amount equal to the value of the warehouse. There were two or three hundred members or stockholders. At a meeting called for the purpose of considering the best course to pursue as to this indebtedness, a resolution was passed that the directors execute a deed to this warehouse to complainant in consideration of his payment of the company's indebtedness. At this meeting the number of members present are estimated between thirty and fifty. Respondent Lauderdale was present and acting as secretary. Respondent Trapp is shown to have had knowledge thereof, but does not seem to have been present. Complainant paid the debt due by the company and took possession of the warehouse, repairing the same and paying the taxes due thereon, claiming the property as his own. No deed was ever executed, but the evidence shows a continuous adverse possession of the property by complainant for more than ten years under claim of ownership.
The evidence discloses that such adverse possession under claim of ownership was *Page 597 known to these respondents, and was such as to operate as a disseisin of them as cotenants and defeat their title. Winsett v. Winsett, 203 Ala. 373, 83 So. 117; Kidd v. Borum, 181 Ala. 144,61 So. 100, Ann. Cas. 1915C, 1226; Miller v. Vizard Inv. Co., 195 Ala. 467, 70 So. 639; Ala. F. I. Co. v. Broadhead,210 Ala. 545, 98 So. 789.
In cases of bills to quiet title under the above-cited statute, complainant makes out a prima facie case for relief by showing peaceable possession and that no suit was pending at the time of the filing of the bill to test defendants' claim of title, and upon such proof is entitled to a decree adjudging defendants' claim invalid unless he establishes a good title. Burkett v. Newell, 212 Ala. 183, 101 So. 836; McDermond v. Hamby, 205 Ala. 522, 88 So. 848.
The evidence very clearly establishes the peaceable possession by complainant, and, as above indicated, complainant would have been entitled to relief against these respondents, but for a failure of proof that no suit was pending at the time the bill was filed testing respondents' claim. This is essential to be established in cases of this character. Parker v. Boutwell, 119 Ala. 297, 24 So. 860; Shannon v. Long,180 Ala. 128, 60 So. 273. The averment as to this essential feature is found in paragraph B of the bill as amended September 13, 1924, and doubtless the fact that the answers of the respondents denied all the allegations in said paragraph escaped attention and placed the burden upon complainant.
We have read the evidence with much care, and fail to discover proof of this essential averment. In the absence of this proof, therefore, the chancellor's decree denying relief is correct, but will be modified here so that the dismissal of the bill will be without prejudice to complainant's right to file another bill of like character, if he so desires.
It is to be understood that the discussion of the evidence of adverse possession is confined in its effect to these respondents. As to other members of the company this litigation is not concerned, as they are not parties to this cause. What has been said suffices to show that cross-complainants were not entitled to a sale of the property for division as among tenants in common, and also upon the additional ground that it appears there were numerous others who were necessary parties to any such suit.
As a bill to quiet title under the statute, the original bill was clearly demurrable and needs no discussion here, especially in view of the fact that complainant received the full benefit of such a bill in the bill as last amended. This assignment of error is without merit.
Nor was there error in sustaining the demurrers to the bill as amended January 7, 1925. The only argument advanced upon this assignment of error is that complainant had a right to ask for relief by way of specific performance of the contract of purchase in connection with relief to quiet title. But without regard to any other consideration, the facts alleged failed to show such a contract entered into by those having an interest in the property as to justify such relief.
The decree of the court below will be here affirmed with the modification as hereinbefore indicated.
Modified and affirmed.
ANDERSON, C. J., and SAYRE and BOULDIN, JJ., concur.