Appellee Taylor filed the bill in this cause to have the court determine the boundary line between coterminous lands owned by himself and appellant Yauger. The final decree determined the line in dispute by reference to the government survey and ordered the register, as commissioner, with the assistance of an engineer whom he might select, to lay off the line so determined on the ground, which was done. Yauger appeals.
The first proposition of the brief for appellant is that the bill is demurrable for lack of a specific offer on the part of complainant to do equity, and that the point was well taken in the circuit court. No specific offer to the effect contended for was necessary to the equity of the bill. Complainant's prayer, it hardly seems necessary to say, was that the court define and establish the disputed boundary line according to equity and the procedure peculiar to that court. As long as the proceeding remains one only to define and establish a disputed boundary, no other equity in favor of defendant is involved. Appellant, defendant, cites Clark v. Whitfield, 213 Ala. 441,105 So. 200. In that case, a suit for partition, it was held that where an answer has been filed setting up an equity in defendant, complainant must, "in view of the answer," offer to do equity. But this is a different case. Appellant's answer does not set up an equitable ground of relief as against complainant. It alleges that the predecessors in title of complainant and defendant more than ten years before suit was brought agreed upon and established the line between their respective lands, different from the line set forth in complainant's bill, which line was marked by cuts or hacks upon trees, by stakes, by an old fence row, and by an old road, and, in effect, that defendant and his predecessors in title had ever since claimed, cultivated, and controlled the land on his side of the line thus established and defined. Aside from its denial of the line claimed by complainant, the essential meaning of this answer was that, whatever may have been the true location of the line between the parties if determined according to the government survey to which their muniments refer, a different line had been established, up to which, on his side, defendant had held adversely for more than ten years. By this answer defendant set up a title by adverse possession of the disputed area between the two lines (Pittman v. Pittman,124 Ala. 306, 27 So. 242; Hess v. Rudder, 117 Ala. 525,23 So. 136, 67 Am. St. Rep. 182; McLester Building Co. v. Upchurch,180 Ala. 23, 60 So. 173); and thereupon defendant moved the court to transfer the cause to the law side of the docket and demanded a trial by jury. This motion and demand were by the court overruled and denied, therein acting, as defendant seems to infer, in pursuance of so much of the statute (section 6440 of the Code 1923) as prescribes that the court "shall determine any adverse claims in respect to any portion of the land involved which it may be necessary to determine for a complete settlement of the boundary lines."
If subdivision 5 of section 6465 of the Code 1923, conferring upon the court of chancery jurisdiction "to establish and define uncertain or disputed boundary lines, whether the bill contains an independent equity or not," and the above-quoted provision of section 6440 of the Code, intend that in cases of uncertain or disputed boundary lines, where no equity has been superinduced by the parties, as for example by the fraud or other misconduct of the defendant, equity shall have jurisdiction to determine title to lands without the intervention of a jury, though demanded, they clearly transcend the Constitution wherein *Page 240 it is provided that the right of trial by jury shall remain inviolate. As was noted in Billups v. Gilbert, 195 Ala. 518,70 So. 145, the constitutional question here involved was interestingly discussed and decided, in agreement with the view now expressed, in King v. Brigham, 23 Or. 262, 31 P. 601, 18 L.R.A. 361. What was there said, involving much of legal history and precedent, need not be repeated. A like opinion had previously, and before the concluding clause of section 6465 had been added (Acts 1923, p. 764), been expressed by this court without much discussion and in a manner indicating that discussion was unnecessary. Ashurst v. McKenzie, 92 Ala. 484,489, 9 So. 262.
But appellant's answer in the court below may be accepted as a denial of the facts on which the equity of complainant's bill was rested, and the decree under review may be, and therefore must be, justified on the ground that the court ascertained, and intended to ascertain, the location of the line shown by the muniments of title, but not to render any decree concerning the legal title to the lands in dispute. For, while equity may in proper cases, that is, in cases where jurisdiction has been acquired upon original grounds of equity, proceed to the determination of the title to land, it must decline jurisdiction where the remedy at law is complete and adequate or where its jurisdiction is invoked as a substitute for the action of ejectment. Gulf Red Cedar Co. v. Crenshaw, 148 Ala. 343,42 So. 564; Ashurst v. McKenzie, supra; Hays v. Bouchelle,147 Ala. 212, 41 So. 518, 119 Am. St. Rep. 64.
According to our inherited principles of equity, the courts administering that jurisdiction "will not interpose to ascertain boundaries, unless, in addition to a naked confusion of the controverted boundaries, there is suggested some peculiar equity which has arisen from the conduct, situation, or relations of the parties" (4 Pom. Eq. Jur. [4th Ed.] § 1384), meaning some misconduct on the part of defendant, as, for example, fraud or a failure to preserve the local evidences of the boundary in case that duty for any reason rests upon him. Stuart's Heirs v. Coalter, 4 Rand. (Va.) 74, 15 Am. Dec. 726, editorial note on page 745. The statute (subdivision 5 of section 6465 of the Code 1923, and the sections embraced in chapter 265 of the Code) extends the jurisdiction to cases of uncertain and disputed boundaries without regard to independent or superinduced equities, thus reviving an ancient jurisdiction which the court of chancery had abandoned (15 Am. Dec. p. 745), and the power of the Legislature to do that cannot be questioned; it being understood, however, that the jurisdiction so conferred does not extend to the determination of legal titles in cases in which trial by jury is demandable as of right. Hence it is that the only question of equitable cognizance presented by the record in this cause arose out of complainant's prayer, in effect, for a commission to locate the boundary between himself and defendant and the averment and proof of facts going to show the propriety of a decree in agreement with the prayer; but, it will be noted, in agreement with what has been said, that the decree cannot have the effect of an estoppel operating upon the legal title acquired or contended for as the result of an adverse possession. Shaw v. State, 125 Ala. 80, 84, 28 So. 390. The effort of defendant to show an adverse possession was dehors the proper issue in the cause and might well have been excluded in its entirety. Defendant's exceptions to sundry adverse rulings on questions of evidence, supposed to shed light upon the question of adverse possession, will not avail anything in the way of reversible error, for the court on appeal considers only the relevant, material, and competent testimony (Code 1923, § 6565), and renders such decree as may thereupon appear to be proper.
Our attention is now in consultation directed to the statement made in Camp v. Dunnavent, 215 Ala. 79, 109 So. 362, that the court, on a bill in equity to establish and define a disputed boundary line, may consider, among other things there mentioned, the question of adverse possession between the parties, meaning, of course, the question of title by adverse possession. That statement appears to have been made without reference to the authorities on the constitutional question involved. The writer, Chief Justice ANDERSON, and SOMERVILLE, J., are unwilling to follow that dictum which, in our opinion, is contrary to the reason of the matter and the numerous decisions cited above. Goodman v. Carroll, 205 Ala. 305,87 So. 368. We concur in the result.
ANDERSON, C. J., and SOMERVILLE, J., concur in this opinion.