
    (88 South. 848)
    McDERMOND et al. v. HAMBY.
    (6 Div. 194.)
    (Supreme Court of Alabama.
    Feb. 3, 1921.
    Rehearing Denied April 21, 1921.)
    1. Quieting title <&wkey;44(l) — Those setting up adverse claims against party in possession have burden of proof.
    Where a bill to quiet title alleged peaceable possession by complainant under claim of ownership and the other requirements of Code 1907, §§ 5443, 5444, the burden of proof was cast upon those asserting title adverse to complainant to establish their claim of right to land.
    2. Evidence <&wkey;353(3) — Recital in quitclaim deed as to previous conveyance not evidence.
    Where complainant purchased from a married man who had acquired land from a railroad company, the recital, in a quitclaim deed to defendants, executed over 30 years later by the railroad company, that the conveyance was made to the man’s wife, is not evidence of that fact.
    Appeal from Circuit Court, Cullman County; Robert C. Brickell, Judge.
    Bill by H.' L. Hamby against Lillie Mc-Derm'ond and others to quiet title to land. Decree for complainant, and respondents appeal.
    Affirmed.
    E. B. St. John, of Cullman, for appellants.
    The deed of the Louisvillé & Nashville Railroad to S. A. Jones, being recorded, was notice of the title of her heirs. 148 Ala. 233, 41 South. 780. The deed relates back to the contract of purchase. 76 Ala. 560. W. L. Jones had only a life estate. 172 Ala. 672, 55 South. 190; 105 Ala. 382, 16 South. 883; 164 Ala. 393, 51 South. 20. Such possession cannot be adverse to the title of the remainderman. 121 Ala. 77, 25 South. 1010; 164 Ala. 393, 51 South. 20; ISO Ala. 425, 61 South. 96. Having testified that the deed was made, it was not incumbent on the witness to say how; or why he knew of it. 139 Ala. 547, 36 South. 712.
    A. A. Griffith, of Cullman, for appellee.
    It does not appear from the record that the deed to S. A. Jones was ever delivered. 130 Ala. 454, 30 South. 500; 122 Ala. 510, 26 South. 152; 175 Ala. 469, 57 South. 767, Ann. Cas. 1914D, 103; 17 Ala. 96. The intention of the party is the substantive thing. 65 Ala. 340. If the deed was not delivered, no title passed. 169 Ala. 606, 53 South. 812.
    <^?For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
   GARDNER, J.

Thi§ is a statutory bill to quiet title filed by the appellee against the appellants, and from the decree in favor of complainant respondents have prosecuted this appeal.

The bill alleges actual peaceable possession by complainant under claim of ownership of the lands therein described, and other statutory requirements (Code 1907, §§ 5443, 5444), and that these averments were sustained by the proof is not a controverted question here.

The burden of proof was therefore cast upon the respondents to establish their claim or, right to the land. As said by this court in Kendrick v. Colyar, 143 Ala. 597, 42 South. 110:

‘‘When the complainant, as here, showed by evidence peaceable possession by her of the land as alleged, and that there was no suit pending at the time of the filing of the bill to test the defendant’s claim of title, this made a prima facie case, and she was entitled to a decree adjudging defendant’s claim invalid unless he established a good title.”

See, also, Whittaker v. Van Hoose, 157 Ala. 286, 47 South. 741; Brand v. U. S. Car Co., 128 Ala. 579, 30 South. 60; Adler v. Sullivan, 115 Ala. 582, 22 South. 87.

The complainant, however, went further than these requirements, and showed a recent purchase by himself of the lands in controversy from one W. L. Jones, with proof of continuous adverse possession thereof from the time the latter acquired the land from the Louisville & Nashville Railroad Company in the year 1885 to the time of sale to complainant.

Respondents in their answer set up the purchase of the land by S. A. Jones, the wife of W. L. Jones, from the Louisville & Nashville Railroad Company, insisting that the deed was executed to her, and that, the wife having died soon thereafter, the possession of the husband was only that of a tenant for life. We are of the opinion that the respondents have failed to establish the averments of their answer by legal proof. The respondents have failed to show by competent and legal proof the execution and delivery of any deed to this land from the Louisville & Nashville Railroad Company to S. A. Jones, and W. L. Jones in his testimony insists that in fact no deed to this land was executed either to himself or his wife.

It is sufficiently established that W. L. Jones was the actual purchaser of this property, and that he paid for the same out of his own estate, and that he remained on these lands all these years under claim of ownership.

The burden was upon the respondents to show the execution and'delivery of the deed by the Louisville & Nashville Railroad Company to S. A. Jones, and the testimony offered by respondents is entirely insufficient for this purpose. Clearly, the mere recitals contained in the quitclaim deed from the Louisville & Nashville Railroad Company to the respondents in 1917 as to the previous execution of a deed to S. A. Jones cannot be looked to as legal proof of this fact, and therefore is without probative force in the establishment of the same. Respondents interposed appropriate objections to such proof, and the trial judge in the decree .states that the determination of the cause rests upon the legal and competent proof only.

The result is therefore that the, respondents have failed to meet the burden of proof cast upon them, and that the decree of the trial court is correct, and will be here affirmed.

Affirmed.

ANbERSON, C. J., and SAYRE and MILLER, JJ., concur.  