On Rehearing.
MERRILL, Justice.Although not specifically stated in Justice GOODWYN’S opinion, the court reached the conclusion that neither party was in peaceable possession, and that the evidence showed a scrambling possession.
We do not question the result reached on original deliverance in this cause. In every case we have read where this court found that there was a scrambling possession, no relief was granted to complainant or respondent under the quieting title statute, Tit. 7, § 1109 et seq. This is so because possession, actual or constructive, must be in the party whose title is quieted. It is obvious that neither party is entitled to recover under the statute when they are scrambling for possession.
Our disagreement is with the reason given for denying relief. This disagreement does not include the discussion of peaceable possession quoted from George E. Wood Lumber Co. v. Williams, 157 Ala. 73, 47 So. 202.
There is a long line of cases holding that complainant must have actual or constructive possession, peaceable and undisputed, as distinguished from a disputed or scrambling possession, to be entitled to recover. 16 Ala.Dig., Quieting Title, ‘$=’12 (9). There was no conflict, addition or subtraction to this rule until the case of Buchmann Abstract & Investment Co. v. Roberts, 213 Ala. 520, 105 So. 675, 676. In that case, this court held that the evidence showed a scrambling possession and dismissed the bill. This action was proper; but the following paragraph was added to the opinion:
“This conclusion destroys the jurisdiction of the court over the cause at *14its very threshold, and renders unnecsary a consideration of the questions which constitute any of the issues as to the contest of title. These matters are properly here pretermitted. Ladd v. Powell, supra [144 Ala. 408, 39 So. 46.]”
Ladd v. Powell supports the result but not the proposition that the jurisdiction of the court is destroyed at its very threshold.
The statement was repeated in Grayson v. Muckleroy, 220 Ala. 182, 124 So. 217. That case was an action in ejectment, and the comment was in connection with a discussion of the effect of a decree in a proceeding to quiet title under Tit. 7, § 1109.
A similar statement is made in McCaleb v. Worcester, 224 Ala. 360, 140 So. 595. The court found as a fact that the complainants failed to meet the burden of proving peaceable possession. Under all the cases, the complainant was not entitled to recover, and the result was correct, without the “jurisdictional” reason which was based on the Buchmann case.
This expression next appeared in Price v. Robinson, 242 Ala. 626, 7 So.2d 568. There again this court found that the possession was scrambling and properly dismissed the bill.
Later, in the case of Crump v. Knight, 250 Ala. 393, 34 So.2d 593, 596, this court followed the Buchmann case, and even though the trial court had held that complainant had neither possession nor title, but found for respondent under his cross-bill, we said:
“When the court determined that the complainant had failed to establish such possession as warranted the maintenance of his bill, this ended any litigable controversy between the parties, and the dismissal of the original bill carried with it the cross bill, as it was not rested upon any special equity independent of the equity asserted in the original bill. * * * ”
This statement and its application conflicts with the holding of this court in cases decided prior to the introduction of the “jurisdiction destroyed” statement in the Buchmann case. See Collier v. Alexander, 138 Ala. 245, 36 So. 367; O’Neal v. Prestwood, 153 Ala. 443, 45 So. 251; Vandegrift v. Southern Mineral Land Co., 166 Ala. 312, 51 So. 983; Sloss-Sheffield Steel & Iron Co. v. Lollar, 170 Ala. 239, 54 So. 272; Rucker v. Jackson, 180 Ala. 109, 60 So. 139. In the opinion in each of the last four cited cases, this court made the categorical statement that the proof showed the complainant was not in possession, yet title was quieted in respondent. It is. obvious that this court did consider that it had jurisdiction to decide the cases even when the complainant did not prove his-allegation that he was in possession.
There would also be a conflict with those cases wherein this court has held that when it appears that the title to part of the land is in the complainant, and part in the respondent, the court should ascertain and declare these facts, and decree accordingly. Motley v. Crumpton, 265 Ala. 565, 93 So.2d 413; Hinds v. Federal Land Bank of New Orleans, 235 Ala. 360, 179 So. 194; Friedman v. Shamblin, 117 Ala. 454, 23 So. 821.
In three other cases decided since Crump v. Knight, 250 Ala. 393, 34 So.2d 593, the statement of “jurisdiction” appears.
In McGowin v. Felts, 263 Ala. 504, 83 So.2d 228, 229, this court stated that— “complainant’s possession was a disputed, contested or scrambling one.” The result reached was proper without the additional' observation as to the court’s lack of jurisdiction.
In Mettee v. Bolling, 266 Ala. 50, 94 So. 2d 191, we held that a demurrer to a bill' in the nature of a bill of review should have-been sustained where the complainant failed to show a present interest, or an interest in his predecessor in title, to land which was-*15the subject of the decree sought to be reviewed. The “jurisdictional” observation was not necessary to the proper result in that case.
In Hart v. Allgood, 260 Ala. 560, 72 So.2d 91, 93, a suit filed under Tit. 7, § 1116, Code 1940, it was shown that complainant was not entitled to maintain his suit under any of the alternatives of the statute and the decree dismissing the bill was properly affirmed. The observation that “the trial court was without jurisdiction over the cause” was not necessary to reach the •correct result.
It is the law both generally and specifically in statutory actions to quiet title, that allegations in pleadings go to the ■question of jurisdiction, and proof to the right of plaintiff to recover. (Of course, it is assumed that the court has jurisdiction •of the parties and the subject matter.)
“The right of a plaintiff to maintain a ■suit, while frequently treated as going to the ■question of jurisdiction, has been said to go ■in reality to the right of plaintiff to relief rather than to the jurisdiction of the court ■to afford it.” 21 C.J.S. Courts § 35, p. 44.
In Adler v. Sullivan, 115 Ala. 582, 22 So. 87, decided just four years after the adoption of the statute, the court said:
“The mere reading of the bill in connection with the statute, under which it is filed, — (Acts, 1892-93, p. 42),— suffices to show that it contains the necessary averments under the act, to give the court jurisdiction and to authorize relief. * * *”
In Chestang v. Bower, 224 Ala. 469, 140 So. 537, 538, it was said:
“It is settled that, in proceedings under the statute to quiet title, if the averments of the bill and the answer conform to the requirements of the statute, the issues thus formed are broad enough .to authorize the court to settle and quiet the title in one or the other of the parties, or, if it is shown that complainant owns part of the land and the defendant part, the decree may so declare, and settle the title accordingly, and to this end a cross-bill is not necessary.”
In Stewart v. Childress, 269 Ala. 87, 111 So.2d 8, 12, we said:
“ * * * Furthermore, it is well settled that in a proceeding under the statute, ‘if the averments of the bill and answer conform to the requirements of the statute, the issues involve everything necessary to a determination by the court as to whether the complainant or the defendant has the superior title to the property, and it is proper for the court under the issues thus, found to determine in which of the parties the title resides.’ * * * ”
See Elsheimer v. Parker Bank & Trust Co., 237 Ala. 24, 185 So. 385; Reeder v. Cox, 218 Ala. 182, 118 So. 338; Collier v. Alexander, 138 Ala. 245, 36 So. 367.
In other of our cases, not proceedings to quite title, we find apt statements. “Jurisdiction, once acquired, cannot be defeated by subsequent events, notwithstanding their character is such as would have prevented jurisdiction originally attaching.” McClellan, J., in Lassiter v. Wilson, 207 Ala. 669, 93 So. 598.
“When jurisdiction has attached the court has a right to decide every question duly presented and arising on the case; the hearing being at a time and place prescribed by law.” Fife v. Pioneer Lumber Co., 237 Ala. 92, 185 So. 759, 762.
Here, the complainant has made every allegation in his bill of complaint necessary to give the court jurisdiction.
There are expressions from other jurisdictions which illustrate the fallacy of the statement in the Buchmann case.
*16“The authority of a court to hear and determine a cause depends upon the allegations of the initiatory pleading, and not upon the facts.” Eagle Cliff Fishing Co. v. McGowan, 70 Or. 1, 137 P. 766, 768.
“The jurisdiction of the subject-matter of any controversy in any court must be determined in the first instance by the allegations in the complaint or petition as the case may be, made in good faith, and does not depend upon the existence of a sustainable cause of action, or by the evidence subsequently adduced.” 17 Standard Encyclopaedia of Procedure, p. 660, -citing cases from several different jurisdictions.
“The jurisdiction of a court to entertain a cause, and the right of the plaintiff in such cause to finally prevail, .present essentially different questions. The former is determined from an inspection of the record; the other results from a consideration of the facts as established by the proof.” Young v. Hamilton, 135 Ga. 339, 69 S.E. 593, 597, 31 L.R.A.,N.S., 1057, Ann.Cas.1912A, 144.
“A complaint, setting forth a substantial claim under a federal statute presents a case within the jurisdiction of the court as a federal court, and this jurisdiction cannot be made to stand or fall upon the way the court may chance to decide an issue as to the legal sufficiency of the facts alleged any more than upon the way it may decide as to the legal sufficiency of the facts proven.” Binderup v. Pathe Exchange, 263 U.S. 291, 44 S.Ct. 96, 98, 68 L.Ed. 308.
“Jurisdiction can never depend upon the merits of the case brought before the court, but only upon its right to hear and decide at all.” Atwood v. Cox, 88 Utah 437, 55 P.2d 377, 381, and cases cited therein.
We think the authorities are ample to show that jurisdiction of a -statutory procedure is invoked by the allegations, not the proof.
The nature and purpose of the proceeding under Tit. 7, § 1109 et seq., is such as to require an adjudication of the rights and claims of the parties at the time of the rendition of the decree. Rucker v. Jackson, 180 Ala. 109, 60 So. 139, Ann.Cas.1915C, 1058.
This is spelled out in the statute. When the bill contains the allegations required in §§ 1109 and 1110, the respondent must, under § 1111, specify his title or claim and its source, or how it was derived and created.
At trial, the burden is on complainant to prove his allegations. If he cannot, he fails to recover and his suit cannot be maintained. But that does not mean that the equity court suddenly lost jurisdiction to proceed any further. The pertinent part of § 1112 provides that:
“ * * * the court shall consider and determine any'title, claim, interest, or incumbrance, and shall, * * *, final- ■ ly adjudge and decree whether the defendant has any right, title, or interest in, or incumbrance upon, such lands, or any part thereof, and what such right, title, interest, or incumbrance is, and in • or upon what part of the lands, the same exists; and such decree is binding and conclusive upon all the parties to the suit.” (Emphasis supplied.)
We think we have explained most of the differences appearing in the cases under the quieting title statute. ' It follows that the “jurisdiction destroyed” statements in the cases of Buchmann Abstract & Investment Co. v. Roberts, 213 Ala. 520, 105 So. 675; Grayson v. Muckleroy, 220 Ala. 182, 124 So. 217; McCaleb v. Worcester, 224 Ala. 360, 140 So. 595; Price v. Robinson, 242 Ala. 626, 7 So.2d 568; McGowin v. Felts, 263 Ala. 504, 83 So.2d 228; Mettee v. Bolling, 266 Ala. 50, 94 So.2d 191; Hart v. Allgood, 260 Ala. 560, 72 So.2d 91; Wilson v. Dorman, 271 Ala. 280, 123 So.2d 112, should be disregarded.
But the case of Crump v. Knight, 250 Ala. 393, 34 So.2d 593, 596, must be and it is overruled, because it was held that when complainant failed to prove possession, “this *17ended any litigable controversy between the parties,” even though title was quieted in respondent by the lower court.
For sixty-nine years, the bench and bar of this state have used Tit. 7, § 1109 et seq., to quiet title. In the great majority of cases, the complainant has had peaceable possession. But we are sure that title has been quieted many times in the respondent when possession was in him. Most of those cases probably were not appealed, but that was the holding of this court in 1907 in O’Neal v. Prestwood, 153 Ala. 443, 45 So. 251, and later in subsequent cases already cited. To begin enforcing a rule that the court has no jurisdiction of a suit to quiet title when the complainant failed to prove his allegation of peaceable possession might put many titles in jeopardy.
Moreover, we cannot believe that the legislature had any intent to so narrow the application of the statute. The title shows that it was an act “To compel the determination of claims to real estate in certain cases and to quiet title to the same.” Laws 1892-93, p. 42. '
This statute has been used extensively in quieting title to wild, unoccupied or vacant lands, and to minerals. Usually, there is no actual possession, and in such cases, title draws to it constructive possession, and the party with the better title is also in possession. Is it reasonable to suppose that the legislature intended for a trial to proceed to mineral interest and quiet the title when it a conclusion to decide the title to an oil or was decided that the complainant had the better title, but to say the court had no jurisdiction to decide the case when the respondent has the better title? It seems that it would not only be anomalous but unreasonable to say that the legislature intended to enact a law giving relief to a complainant, but forbidding the same relief to a respondent, even though the statute requires the respondent to show his claim and title in full. The effect of this would be the court of equity becoming an agency for promoting a multiplicity of suits.
We think also that the doctrine of estoppel applies in cases where it is found that title and peaceable possession are in the respondent. This is implied in Burdett v. Rossiter, 220 Ala. 631, 127 So. 202, 204, where it was said:
“If original complainant fails to make proof of the jurisdictional fact of possession, he cannot have relief thereon. “But when he brings in the respondent, who has set up by answer his claim , of title, the rule is that respondent may by cross-bill have the state of his title adjudicated whether he is in possession or not! Sloss-Sheffield S. & I. Co. v. Lollar, 170 Ala. 239, 253, 54 So. 272; Smith v. Rhodes, 206 Ala. 460, 90 So. 349.”
We note that even though there was a cross-bill in Sloss-Sheffield S. & I. Co. v. Lollar, supra, the'court said: “Under the statute, the defendant, on its answer, apart from the cross-bill feature, having established its prior right or title, was entitled to have its title and claim determined and adjudged by the decree of the court. Collier v. Alexander, 138 Ala. 245, 36 So. 367.” [170 Ala. 239, 54 So. 276.]
Where the complainant brings the respondent into court under an allegation that complainant is in peaceable possestion, and respondent sets up his claim as required by the statute, and then complainant fails to prove his peaceable possession, he should be estopped to urge a lack of-jurisdiction when the respondent proves both peaceable possession and better title. Myers v. Moorer, Ala., 134 So.2d 168.1 It is the rule in Alabama that when a party invokes the jurisdiction of a court of equity on an alleged state of facts which gives the court jurisdiction, he will not be permitted to assert an inconsistent theory which would deprive the court of jurisdiction. Hamilton *18v. Watson, 215 Ala. 550, 112 So. 115; Ray v. Hilman, 229 Ala. 424, 157 So. 676.
Assuming that the bill and answer conform to the requirements of the statute, and the respondent does make a claim, as distinguished from the disclaimer provided for in § 1114, we think the following principles should apply:
1. If there is only a scrambling possession, neither complainant nor respondent has actual or constructive possession and the bill should be dismissed. Lyon v. Arndt, 142 Ala. 486, 38 So. 242; Ladd v. Powell, 144 Ala. 408, 39 So. 46; Holland v. Coleman, 162 Ala. 462, 50 So. 128.
2. If the complainant fails to make proof of peaceable possession, actual or contractive, he cannot have relief and is not entitled to have title quieted in himself. Hagler v. Boner, 221 Ala. 307,128 So. 592; Holland v. Coleman, 162 Ala. 462, 50 So. 128.
3. If the respondent has made an adequate answer under Tit. 7, § 1111, and the proof shows that respondent has the better title and has peaceable possession, then respondent should have title quieted in himself. Collier v. Alexander, 138 Ala. 245, 36 So. 367; O’Neal v. Prestwood, 153 Ala. 443, 45 So. 251; Vandegrift v. Southern Mineral Land Co., 166 Ala. 312, 51 So. 983; SlossSheffield S. & I. Co. v. Lollar, 170 Ala. 239, 54 So. 272; Rucker v. Jackson, 180 Ala. 109, 60 So. 139; Stewart v. Childress, 269 Ala. 87, 111 So.2d 8; Myers v. Moorer, post, p. 18, 134 So.2d 168.
The application for rehearing is overruled.
LAWSON, SIMPSON, STAKELY and COLEMAN, JJ., concur. LIVINGSTON, C. J., and GOODWYN, J., concur in the result.. Post, p. 18.