
    (83 South. 33)
    ELLEDGE et al. v. FUNKE.
    (8 Div. 120.)
    Supreme Court of Alabama.
    June 30, 1919.
    Rehearing Denied Oct. 23, 1919.
    Quieting title <&wkey;12(l)—Possession essential TO ACTION TO REMOVE CLOUD.
    In suit to cancel a deed as a cloud on complainant’s title, and to enjoin respondents from trespassing on the land or removing timber, it is essential that complainant allege and prove his actual possession of the land at the time of filing of the bill; right to relief and jurisdiction being dependent tbereon.
    Appeal from Circuit Court, Colbert County; C. P. Almon, Judge.
    Suit in equity by Ferdinand Funke against J. M. Elledge and another. From a decree for complainant, respondents appeal.
    Reversed and rendered.
    Kirk & Rather, of Tuscumbia, for appellants.
    James H. Branch and Al H. Carmichael, both of Tuscumbia, for appellee.
   SOMERVILLE, J.

The bill of complaint is filed to cancel a certain deed to 40 acres of land, executed by one Mack Gipson to the respondents, Elledge and Jeffries, as a cloud on complainant’s title, and to enjoin said respondents from trespassing on the land or removing timber therefrom. The bill admits that the legal title to the land was formerly in respondents’ predecessor and privy in estate, but alleges that it had been divested by complainant’s adverse possession for 10 and 20 -years, and that complainant is in possession of the land.

In a case of this character it is, of course, essential that the complainant allege and prove his actual possession of the land at the time of the filing of his bill. Jones v. DeGraffenreid, 60 Ala. 145; Belcher v. Scruggs, 125 Ala. 336, 27 South. 839. The right to relief, and, indeed, the jurisdiction of the court, is dependent upon that fact.

We have examined the testimony with critical care, and we are constrained to hold that complainant has not met the burden of proof upon this issue. In fact, we are satisfied that, whatever acts of ownership complainant may have exercised on previous occasions, respondents were in the actual possession of the land, under a regular chain of title, and bona fide claim of ownership, when this suit was begun, and that complainant had been effectually disseised by them.

On the evidence^ we think complainant should have resorted to an action of ejectment and recovered the possession, before resorting to this remedy. A discussion of the evidence would be tedious and useless, and we shall not undertake it. Let the decree of the circuit court be reversed, and a decree here rendered, denying relief and dismissing the bill of complaint.

Reversed and rendered.

ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.  