(dissenting).
It seems to me that the majority opinion might well lead to further confusion and doubt as to the proper procedure to be followed in a suit to quiet title under the provisions of Code 1940, Tit. 7, § 1109 et seq. I say this because no consideration is given to cases which I think have a direct bearing on the authority of the trial court to determine the title to be in the respondents when the complainants have failed to establish *23their peaceable possession of the lands. There are cases holding that a complainant’s peaceable possession is essential to the maintenance of such a suit; that failure to establish such possession brings to an end any litigable controversy between the parties; and that the dismissal of the original bill carries with it a cross-bill which is not rested upon a special equity independent of the equity asserted in the original bill. See: McGowin v. Felts, 263 Ala. 504, 506, 83 So.2d 228; Crump v. Knight, 250 Ala. 393, 396, 34 So.2d 593; Price v. Robinson, 242 Ala. 626, 628, 7 So.2d 568; Grayson v. Muckleroy, 220 Ala. 182, 186, 124 So. 217; Buchmann Abstract & Investment Co. v. Roberts, 213 Ala. 520, 521, 105 So. 675; Central of Georgia Railroad Company v. Rouse, 176 Ala. 138, 57 So. 706; Holland v. Coleman, 162 Ala. 462, 468, 469, 50 So. 128; Ladd v. Powell, 144 Ala. 408, 410, 39 So. 46; Tilley’s Alabama Equity Pleading and Practice, § 237, p. 314.
As said in Crump v. Knight, supra [250 Ala. 393, 34 So.2d 595] :
“In Buchmann Abstract & Investment Co. v. Roberts, 213 Ala. 520, 105 So. 675, 676, it was observed:
“ ‘ * * * In the light of our former decisions, we are constrained to hold that the possessory acts herein indicated on the part of respondent were sufficient as a contest of complainant’s possession so as to destroy the peaceable character thereof and constitute it a disputed, contested or scrambling one. * * * ’
“The court further observed: 'This conclusion destroys the jurisdiction of the court over the cause at its very threshold, and renders tmnecessary a consideration of the questions which constitute any of the issttes as to the contest of title. These matters are properly here pretermitted. Ladd v. Powell [144 Ala. 408, 39 So. 46] supra.’
“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. * * *" [Emphasis supplied.]
In Price v. Robinson, supra, this court, after concluding that complainants did not have peaceable possession of the lands, had this to say [242 Ala. 626, 7 So.2d 570]:
“This conclusion destroys the jurisdiction of the court over the cause, and renders unnecessary a determination of any issue as to the contest of title. These questions are properly here pretermitted.” [Emphasis supplied.]
From Grayson v. Muckleroy, supra, is the following [220 Ala. 182, 124 So. 220]:
“ * * * Proof of peaceable possession, actual or constructive, was necessary to sustain the equity of the bill, and in the absence of such proof the court was without jurisdiction to adjudicate and determine the title. * * * ” [Emphasis supplied.]
As required by § 1109, Tit. 7, the original bill in this case alleged that complainants were in peaceable possession of the lands and that no suit was pending to test the title. The respondents (appellees), in answering the bill, denied that complainants were in peaceable possession and admitted that, at the time the bill was filed, no suit was pending to test the title. The answer, as required by § 1111, Tit. 7, set forth the basis of respondents’ claim to ownership of the lands. Respondents then made their answer a cross-bill with a prayer that the court decree ownership of the lands to be in them. There is no allegation that réspondents were in “peaceable possession.” However, taking the allegations as a whole, the cross-bill probably is sufficient to show such possession. Nor does the cross-bill contain an allegation that, at the time of its *24filing, there was no suit pending to test the title.
The trial court decreed “that complainants are not entitled to relief on their bill of complaint as last amended and that the same should be and * * * is hereby dismissed with prejudice”; that “cross-complainant, M. L. Moorer, is the owner in fee simple” of the lands, subject only to an oil, gas and mineral lease to Magnolia Petroleum Company, one of the respondents and cross-complainants; and “that none of the complainants * * * has any right, title, or interest in, or any lien or encumbrance on, the said real property.” The decree contains no factual findings. However, as appears from the majority opinion, there is evidence showing that complainants did .not have peaceable possession. As I read the majority opinion, no conclusion is reached as to whether 'the cross-complainants were in peaceable possession but only that they have the superior title.
Since the complainants did not establish their peaceable possession, it is my view, on authority of the cases cited, supra, that dismissal of the original bill carried with it the cross-bill, as it was not based on an equity independent of the equity asserted in the original bill, that is, the statutory equity.
In this connection, the question arises whether a cross-bill alleging the statutory requirements of peaceable possession by a cross-complainant and of no suit pending to test the title can be a basis for relief under the statute. In other words, since such a cross-bill meets the requirements of the statute, why should not the cross-complainant be entitled to maintain his suit and have the title determined the same as if it were an original suit? The obvious answer is that the pleadings in the case affirmatively show that, at the time the cross-bill was filed, there was in fact a suit then pending — the original suit brought by complainant — testing the title. See: Floyd v. Andress, 246 Ala. 301, 305(5), 20 So.2d 331; Owen v. Montgomery, 230 Ala. 574, 576, 161 So. 816; Scott v. Scott, 211 Ala. 424, 425, 100 So. 755. As said in Floyd v. Andress, supra [246 Ala. 301, 20 So.2d 334]:
“ * * * But while the cross-bill contains the allegation of no suit pending, as required by the statute, yet when this allegation is considered in the light of the original bill, it appears that there was in fact a suit pending in which the title is involved when the cross-bill was filed. Owen v. Montgomery, 230 Ala. 574, 161 So. 816. For this reason we will not sustain the cross-bill as a statutory bill to quiet title.”
In Owen v. Montgomery, supra, it is said [230 Ala. 574, 161 So. 817]:
“ * * * While the cross-bill contains the essential allegation of no suit pending, yet such averment is to be viewed in the light of the proceedings and the purpose of the original bill therein answered, and so viewed discloses there is in fact a suit pending in which the title is involved. It is inconsistent with the entire proceedings, and, as pleading, must fall of its own weight. * * * ”
This could well have been the reasoning behind the holding in Crump v. Knight, supra [250 Ala. 393, 34 So.2d 596], that “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.”
If it should be held that the title can be determined in the statutory proceeding when the complainant fails to prove his peaceable possession, and no independent equity is involved, it would create, it seems to me, an illogical result. For instance, suppose the trial court should hold that the complainant does not have peaceable possession and consequently dismisses his bill, but nevertheless holds that the respondent has the superior title. The complainant then appeals to this court seek*25ing a review of that holding. In our review suppose we conclude that the trial court was in error and that the complain-■4-ant has the superior title. What would be our disposition of the case? In holding that the respondent does not have the superior title, would we not necessarily have to hold complainant’s title to be superior? If that is so, would we reverse and remand the case for a new trial even though the complainant could not maintain his bill, because he was not in peaceable possession ? Should we reverse the trial court and render a decree holding that the complainant has the superior title? If we do that would we not be holding that complainant can get relief even though his bill was properly dismissed? It seems to me that this would be a most illogical result. Should we reverse the trial court and render a decree simply holding that the trial court erred in decreeing the title to be in respondent? If that should be done the effect would be to hold that the complainant has the superior title, for the essence of the statutory proceeding is to settle the title as between the parties to the suit; in other words, to determine which has the superior title. Necessarily then, as between the parties, one or the other has the superior title. To hold that the respondent does not have it would be to hold that the complainant does. But the complainant cannot get relief even though the court has decided he has the superior title because, as already noted, he has failed to establish his peaceable possession as required by the statute. Can it be said, with any degree of logic, that the legislature intended any such results? Clearly not, it seems to me.
Another situation comes to mind. It has been held repeatedly that a contested, disputed, or scrambling possession will not support a suit to quiet title under the statute. McGowin v. Felts, 263 Ala. 504, 83 So.2d 228, supra, and cases there cited; Walthall v. Yohn, 252 Ala. 262, 40 So.2d 705, and cases there cited; Price v. Robinson, 242 Ala. 626, 7 So.2d 568, supra, and cases there cited. Suppose there is a scrambling possession. Clearly, the complainant’s bill could not be sustained and should be dismissed. In that situation, on what basis would the trial court be authorized to proceed to a determination of the title as between the parties (there being involved no equity independent of the statutory equity) ? Even if the respondent should seek relief by a cross-bill setting up the statutory equity, there would be a failure to establish his peaceable possession, which is one of the statutory essentials for maintenance of such a bill. Surely, if complainant could not maintain his bill due to failure to establish his peaceable possession, the respondent, failing to establish such possession in himself, could not maintain his cross-bill.
Another situation concerns the determination of title when neither party is in the actual possession of the lands. The statute (§ 1109, Tit. 7) provides that the peaceable possession may be either “actual or constructive.” If there is no actual possession, the required “peaceable possession” under the statute rests with the holder of the legal title. Walthall v. Yohn, 252 Ala. 262, 40 So.2d 705, supra; Ex parte Proctor, 247 Ala. 138, 22 So.2d 896; Brunson v. Bailey, 245 Ala. 102, 16 So.2d 9; Shannon v. Long, 180 Ala. 128, 60 So. 273; George E. Wood Lumber Co. v. Williams, 157 Ala. 73, 47 So. 202. So, if it should be determined that the complainant has the legal title (no one being in actual possession) then he would have the constructive peaceable possession, which would be sufficient under the statute. In that situation the suit could be maintained the same as if complainant had established his actual' peaceable possession. On the other hand, if it be determined that the respondent has the legal title then he would have the constructive peaceable possession, thus denying to complainant the right to maintain his suit. In that circumstance, the status of the proceedings would be identically the same as if the evidence had established that the respondent, and not the complainant, was in the actual peace*26able possession. The effect of determining the title in that situation has been discussed above.
No doubt the able Justices of this Court who participated in the decisions cited above gave consideration to these practical results, and there may well be other results not here noted producing similar dilemmas. I am convinced those holdings are in accord with the legislative purpose and intent, that they are logical and sound, and should be applied in this case.
It should be remembered that we are dealing here with a proceeding which is cognizable in equity only by virtue of a statute. It might be that such statute should be revised to make it unnecessary for the complainant to have peaceable possession of the lands in order to maintain a suit to quiet title thereunder, as has been done when the state is a complainant. See Section 1115, Tit. 7, Code 1940. Too, it can be argued, with some merit, that a respondent, being brought into court, should be permitted to have his title determined in such proceeding even though the complainant fails to establish his peaceable possession. But in the light of the statute as presently written and the foregoing authorities dealing with it, it seems to me that the legislature has purposely restricted the maintenance of such a suit to instances where the complainant is in peaceable possession and no suit is pending to test the title. If there is to be a broadening of proceedings under the statute, it should be done by the legislature and not by this court.
I feel that the question of the authority of the trial court to determine the title in favor of the respondents is one going to the jurisdiction of that court which should be affirmatively disposed of in this case. The cases holding that there is a lack of jurisdiction to determine the title should either be applied or overruled. Only in this way can the bench and bar of this state know what course to follow in the disposition of similar cases. The question should be met and settled. The fact that the parties have not raised the question cannot operate to confer jurisdiction.
For the foregoing reasons, I respectfully dissent.
LIVINGSTON, C. J., concurs in the above dissent.