[20]*20COLEMAN, Justice.
This is an appeal by complainants from a final decree, granting the relief prayed for by respondents in their cross bill, in a suit whereby complainants seek to quiet title and to redeem from a tax sale.
The land involved is described as WJ4s of NWj4 of Section 14, in Township 1 North, of Range 3 West, in Mobile County. It appears to lie in the Citronelle oil field. There are no improvements on the land and it is unenclosed except for a fence which was erected either, as complainants contend, after suit was filed or, as respondents contend, a few days before such filing. Tire land is bounded on one side by the Russell Road and, prior to discovery of oil, was valuable chiefly for turpentine and timber.
Complainants are holders of the record title. Respondents claim under a deed from 'A. B. Jeffries who acquired under a tax sale. The parties agreed and stipulated as follows:
“One: The record title to this property is out of the Government and was vested in Jennie Brown, a widow, at the time she conveyed said property to William M. Myers and Joseph D„ Myers.
“Mr. Caffey: Modify that to the time of the deed.
“Mr. Reams: By deed dated March 18, 1932.
“Two: The respondent(s) acquired tax title to said property by means (sic) conveyances from A. B. Jeffries, who received tax deed under a tax . sale against William F. and Joseph D. Myers.
“Three: A. B. Jeffries and M. L. Moorer and Magnolia Petroleum Company had July as(s)essed and paid taxes on the said property each year since A. B. Jeffries acquired the title . on July 12, 1938, and no one, other than the said persons, have paid tax on the said property, or any part thereof, since that time.
“Court: You mean from the time of the tax deed to the present time?
“Mr. Reams: Yes sir. That is correct.”
The contentions of complainants were expressed by counsel to the trial court as follows:
“The theory, under which we brought this case, is the same as a number of other cases that have come from the Circuit Court of Mobile County and gone up to the Supreme Court of Alabama. It is a Statutory Bill to Quiet Title, and combined with that is the effort to redeem from a tax sale under provisions of Section 296, Title 61, of the Code of Alabama of 1940. Under that section, and under the cases construing that section, we feel that the law is settled, that so long as the tax purchaser has not taken actual, adverse, open, notorious and continuous pos(s)ession of the property and held it for three years, that the record holders are entitled to redeem from the tax sale, and it is under that theory ■ this suit is brought.”
By the decree appealed from, the trial court denied complainants’ right to redeem, dismissed their bill, and decreed that respondents are the owners of the land in suit and that complainants have no right, title, or interest therein.
As we understand the briefs of complainants, they contend on this appeal that the decree appealed from was in error because the evidence fails to show that respondents and their grantor, Jeffries, who purchased the tax title, have had three years of adverse possession such as will vest title in respondents under the short statute of limitations, § 295, Title 51, Code ■ 1940.
Testimony was taken ore tenus and we are of opinion that it is sufficient to sustain [21]*21a finding that respondents have had three years, or more, of adverse possession since Jeffries acquired his tax deed.
Jennie Brown, stipulated holder of the record title, conveyed to William F. Myers, now deceased, and his brother, Joseph D. Myers, by quitclaim deed dated March 18, 1932. H. W. Macon testified that under an agreement with “Myers. Mr. or Mrs. Myers. I don’t know which it was,” he, Macon, turpentined the land from 1933 to 1938.
William F. Myers died intestate in Savanna, Illinois, in 1939, leaving two children, Robert F. Myers and Edna Myers McKay. Joseph D. Myers, Robert F. Myers, Edna Myers McKay, and A. B. Case who holds deeds from Joseph D. and Robert F. Myers, are the complainants.
Joseph D. Myers testified in answer to interrogatories as follows: he is 59 years old and has lived in or near Savanna, Illinois, all his life; he visited Mobile once 23 years ago; he and William F., Myers never lived in or near Citronelle and the widow and children of William F. Myers .never lived there; Joseph D. and William F. Myers paid taxes on the land, but Joseph D. does not believe they paid any taxes aft'er 1938 and he did not remember whether they paid any taxes on the property since 1933; Joseph D. Myers first learned that oil had been found at Citronelle when A. B. Case went to see Joseph D. at Savanna, Illinois, in October, 1955; and Joseph D. Myers, for $50, executed a deed to Case dated “October 26, 1955,” whereby Myers reserved to himself an undivided one-half interest in “the usual one-eighth royalty.”
A deed from Joseph D. Myers to A. B. Case is in evidence and is dated October 25, 1955. A similar deed of same date from “Robert Myers” to Case for a recited consideration of $25 is also in evidence.
A. B. Case testified on cross-examination .that he had been on the land once before he bought it, about a month before; that up to that time he did not know anything about the property or who claimed it; that on November 9, 1955, the day this suit was filed, he had the land surveyed and assisted in making the survey; that making the survey occupied about three hours, from nine-thirty to twelve-thirty; that he put up about one-half dozen “No Trespassing” signs bearing his name, some in front and some in back of the property; and that he had since been on the land on one occasion to look at two stumps.
We have found in the record no other evidence tending to show any actual possession by any of the complainants since 1938. Clearly, on the evidence heard ore tenus, the court could, without error, find that complainants had no actual possession after 1938. We do not understand that complainants seriously contend that they were in actual possession after 1938.
Complainants appear to contend, however, that they had constructive possession as holders of the record title and that their constructive possession had not been ousted by actual possession on the part of respondents, as was held in Tensaw Land & Timber Company v. Rivers, 244 Ala. 657, 15 So.2d 411.
As noted above, A. B. Jeffries acquired a tax deed in 1938. In 1941, he conveyed to the respondent, M. L. Moorer. The other respondent, Magnolia Petroleum Company, holds an oil lease from Moorer.
There was testimony which, if true, showed that, after acquiring his deed in 1938, Jeffries went on the land and cut timber thereon; that the respondent, Moorer, bought the land from Jeffries in 1941; that Moorer physically went on the land; that Moorer found “Posted” or “Keep Off” signs that had been placed around the land by Jeffries; that Moorer, by employees, turpentined the land for three years in 1942, 1943, and 1944; that 1,400 to 2,000 cups were placed on trees on the land in this operation; that Moorer had employees looking after the land and to keep trespassers off; that Moorer himself frequently went on the land; that in 1948 and 1949 Moorer had certain timber cut and instruct[22]
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[20]*20COLEMAN, Justice.
This is an appeal by complainants from a final decree, granting the relief prayed for by respondents in their cross bill, in a suit whereby complainants seek to quiet title and to redeem from a tax sale.
The land involved is described as WJ4s of NWj4 of Section 14, in Township 1 North, of Range 3 West, in Mobile County. It appears to lie in the Citronelle oil field. There are no improvements on the land and it is unenclosed except for a fence which was erected either, as complainants contend, after suit was filed or, as respondents contend, a few days before such filing. Tire land is bounded on one side by the Russell Road and, prior to discovery of oil, was valuable chiefly for turpentine and timber.
Complainants are holders of the record title. Respondents claim under a deed from 'A. B. Jeffries who acquired under a tax sale. The parties agreed and stipulated as follows:
“One: The record title to this property is out of the Government and was vested in Jennie Brown, a widow, at the time she conveyed said property to William M. Myers and Joseph D„ Myers.
“Mr. Caffey: Modify that to the time of the deed.
“Mr. Reams: By deed dated March 18, 1932.
“Two: The respondent(s) acquired tax title to said property by means (sic) conveyances from A. B. Jeffries, who received tax deed under a tax . sale against William F. and Joseph D. Myers.
“Three: A. B. Jeffries and M. L. Moorer and Magnolia Petroleum Company had July as(s)essed and paid taxes on the said property each year since A. B. Jeffries acquired the title . on July 12, 1938, and no one, other than the said persons, have paid tax on the said property, or any part thereof, since that time.
“Court: You mean from the time of the tax deed to the present time?
“Mr. Reams: Yes sir. That is correct.”
The contentions of complainants were expressed by counsel to the trial court as follows:
“The theory, under which we brought this case, is the same as a number of other cases that have come from the Circuit Court of Mobile County and gone up to the Supreme Court of Alabama. It is a Statutory Bill to Quiet Title, and combined with that is the effort to redeem from a tax sale under provisions of Section 296, Title 61, of the Code of Alabama of 1940. Under that section, and under the cases construing that section, we feel that the law is settled, that so long as the tax purchaser has not taken actual, adverse, open, notorious and continuous pos(s)ession of the property and held it for three years, that the record holders are entitled to redeem from the tax sale, and it is under that theory ■ this suit is brought.”
By the decree appealed from, the trial court denied complainants’ right to redeem, dismissed their bill, and decreed that respondents are the owners of the land in suit and that complainants have no right, title, or interest therein.
As we understand the briefs of complainants, they contend on this appeal that the decree appealed from was in error because the evidence fails to show that respondents and their grantor, Jeffries, who purchased the tax title, have had three years of adverse possession such as will vest title in respondents under the short statute of limitations, § 295, Title 51, Code ■ 1940.
Testimony was taken ore tenus and we are of opinion that it is sufficient to sustain [21]*21a finding that respondents have had three years, or more, of adverse possession since Jeffries acquired his tax deed.
Jennie Brown, stipulated holder of the record title, conveyed to William F. Myers, now deceased, and his brother, Joseph D. Myers, by quitclaim deed dated March 18, 1932. H. W. Macon testified that under an agreement with “Myers. Mr. or Mrs. Myers. I don’t know which it was,” he, Macon, turpentined the land from 1933 to 1938.
William F. Myers died intestate in Savanna, Illinois, in 1939, leaving two children, Robert F. Myers and Edna Myers McKay. Joseph D. Myers, Robert F. Myers, Edna Myers McKay, and A. B. Case who holds deeds from Joseph D. and Robert F. Myers, are the complainants.
Joseph D. Myers testified in answer to interrogatories as follows: he is 59 years old and has lived in or near Savanna, Illinois, all his life; he visited Mobile once 23 years ago; he and William F., Myers never lived in or near Citronelle and the widow and children of William F. Myers .never lived there; Joseph D. and William F. Myers paid taxes on the land, but Joseph D. does not believe they paid any taxes aft'er 1938 and he did not remember whether they paid any taxes on the property since 1933; Joseph D. Myers first learned that oil had been found at Citronelle when A. B. Case went to see Joseph D. at Savanna, Illinois, in October, 1955; and Joseph D. Myers, for $50, executed a deed to Case dated “October 26, 1955,” whereby Myers reserved to himself an undivided one-half interest in “the usual one-eighth royalty.”
A deed from Joseph D. Myers to A. B. Case is in evidence and is dated October 25, 1955. A similar deed of same date from “Robert Myers” to Case for a recited consideration of $25 is also in evidence.
A. B. Case testified on cross-examination .that he had been on the land once before he bought it, about a month before; that up to that time he did not know anything about the property or who claimed it; that on November 9, 1955, the day this suit was filed, he had the land surveyed and assisted in making the survey; that making the survey occupied about three hours, from nine-thirty to twelve-thirty; that he put up about one-half dozen “No Trespassing” signs bearing his name, some in front and some in back of the property; and that he had since been on the land on one occasion to look at two stumps.
We have found in the record no other evidence tending to show any actual possession by any of the complainants since 1938. Clearly, on the evidence heard ore tenus, the court could, without error, find that complainants had no actual possession after 1938. We do not understand that complainants seriously contend that they were in actual possession after 1938.
Complainants appear to contend, however, that they had constructive possession as holders of the record title and that their constructive possession had not been ousted by actual possession on the part of respondents, as was held in Tensaw Land & Timber Company v. Rivers, 244 Ala. 657, 15 So.2d 411.
As noted above, A. B. Jeffries acquired a tax deed in 1938. In 1941, he conveyed to the respondent, M. L. Moorer. The other respondent, Magnolia Petroleum Company, holds an oil lease from Moorer.
There was testimony which, if true, showed that, after acquiring his deed in 1938, Jeffries went on the land and cut timber thereon; that the respondent, Moorer, bought the land from Jeffries in 1941; that Moorer physically went on the land; that Moorer found “Posted” or “Keep Off” signs that had been placed around the land by Jeffries; that Moorer, by employees, turpentined the land for three years in 1942, 1943, and 1944; that 1,400 to 2,000 cups were placed on trees on the land in this operation; that Moorer had employees looking after the land and to keep trespassers off; that Moorer himself frequently went on the land; that in 1948 and 1949 Moorer had certain timber cut and instruct[22]*22ed the party cutting to leave certain trees; that the party cutting the timber built a mule lot on the land in 1948 and signs of the lot are still there; that in 1948, Moorer executed a stump lease and the lessee removed stumps from the land under authority of the lease; that in 1953, Moorer sold pulpwood on the land and the purchaser cut and removed pulpwood under Moorer’s authority; that in 1954, Moorer executed a right of way deed to the Alabama Power Company and the company erected a power line on the land under the deed; that in 1954 or 1955, Moorer authorized cutting of timber on the land and pine and hardwood were cut; that he gave permission to use the land for pasture and to hunt on it; that soon after he bought the land, he put up posted signs around the land and replaced them every 3 to 5 years; and that Moorer fenced the land a few days before this suit was filed after he had learned of the recording of the deeds to A. B. Case. It is stipulated that Jeffries and the respondents have paid all taxes on the land since 1938. There is no evidence that Moorer’s title to the land was ever questioned before this suit was filed. Clearly no one other than Jeffries and Moorer have had actual possession since 1938.
“ ‘ * * *. “To constitute an actual possession of land it is only necessary to put it to such use or exercise such dominion over it as in its present state it is reasonably adapted to.” Alabama State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174, 175.’” Pfaffman v. Case, 259 Ala. 411, 413, 66 So.2d 890, 891.
We are of opinion that the evidence of the acts done on the land by respondents under claim of ownership during a period of seventeen years sustains a finding that respondents had adverse possession for more than three years after 1938. There is contradictory evidence which presented an issue of fact for the trial court to decide. That court heard testimony ore tenus and decided in favor of respondents. We cannot say that the decree appealed from is plainly and palpably wrong.
In the answers of Joseph D. Myers and Lawrence A. Smith to interrogatories propounded to them, there are statements that from 1943 to 1947 one or both of the complainants, Robert F. Myers and Edna Myers McKay, were serving in the Armed Forces of the United States. Complainants argue that possession by Moorer was ineffective against the complainants, Robert and Edna, during their military service, and that respondents have failed to show three years of adverse possession since said military service terminated. See MacQueen v. McGee, 260 Ala. 315, 70 So.2d 260.
We have not found in the bill of complaint any averment that these complainants were in military service. Proof without averment is as unavailing as averment without proof, Salmon v. Wynn, 153 Ala. 538, 45 So. 133; and proof without allegation cannot be considered, Shiland v. Retail Clerks, 259 Ala. 277, 66 So.2d 146. Under this rule, we might properly disregard complainants’ argument concerning the evidence of military service because that matter was not pleaded. We are of opinion, however, that respondents have shown adverse possession for three years or more after the military service terminated.
The decree of the circuit court is due to be and is affirmed.
Affirmed.
SIMPSON, STAKELY, and MERRILL, JJ., concur.
LIVINGSTON, C. J., and GOODWYN, J., dissent.