Adams v. Pollak

• Decision Date: 07 June 1928
• Docket Number: 6 Div. 904
• Citation: 117 So. 299,217 Ala. 688
• Parties: ADAMS v. POLLAK et al.
• Court: Alabama Supreme Court

117 So. 299

217 Ala. 688

ADAMS v. POLLAK et al.

6 Div. 904

Supreme Court of Alabama

June 7, 1928

Appeal from Circuit Court, Marion County; Ernest Lacy, Judge.

Bill to quiet title by Helene Pollak and others against Mrs. V.J Adams, and cross-bill by defendant. From a decree for complainants, defendant appeals. Affirmed.

Williams & Chenault, of Russellville, for appellant.

K.V Fite, of Hamilton, for appellees.

BROWN J.

This bill was filed by the appellees against the appellant to quiet title to certain real estate--mineral rights--in lands situated in Marion county, and, following the prescription of the statute, it describes the land, alleges the possession and ownership of the complainants, and that the defendant claims, or is reputed to claim, some right, title, or interest in, or incumbrance upon, such land, and calls upon her "to set forth and specify her title, claim interest, or incumbrance, and how and by what instrument the same is derived and created." Code of 1923, § 9906.

The defendant answered, denying in general terms the complainants' ownership and possession, and her answer avers that--

"This respondent claims said real estate through and by virtue of a certain mortgage or trust deed executed by W.H Haney for M.A. Haney to W.T. Adams Machine Company as a beneficiary, with R.T. Adams as trustee therein, which was executed December 14, 1888, and conveyed the lands herein described. Also this respondent claims the title through the foreclosure deed of R.L. Young as trustee to W.T. Adams, which said deed is dated December 20, 1893; and respondent further claims said title through conveyance from W.T. Adams Machine Company on to and into this respondent."

The respondent made her answer a cross-bill to quiet the title, and called on the complainants to set forth and specify their title.

The complainants answered to the cross-bill asserting title from Wm. R. Haney and wife to J.W. Dimmick, as trustee, dated February 15, 1887, and through mesne conveyances to their ancestor Ignatius Pollak. Also under a deed of the register of the circuit court, and under tax title.

The evidence shows that Wm. R. Haney entered the land, the mineral rights to which is the subject of this controversy, as a homestead; that he made his final proof and received the final certificate evidencing such entry on May 28, 1886, and on the 31st day of December, 1889, he received a patent from the government conveying to him the fee-simple title thereto. Both parties claim through Haney, as the common source of their respective titles.

On February 15, 1887, Haney and wife conveyed to Dimmick, trustee, by warranty deed, duly acknowledged and delivered. This deed is the first link in complainants' title, and was not filed for record until the 20th day of March, 1889.

On December 14, 1888, Haney and wife executed to W.T. Adams, as trustee for the W.T. Adams Machine Company, a trust deed, to secure an indebtedness of $1,200, without covenant of warranty, with granting clause in the following language:

"That the first party for the consideration hereinafter stated and the sum of one dollar to in hand paid, the receipt whereof is hereby acknowledged, has granted, bargained, sold and conveyed, and by these presents, so grant, bargain, sell and convey to the said second party, his successor or successors, and their assigns, all the right, title, claim or interest of said parties of the first part in and to the following property, to wit: (Description of personal property omitted.) Also one hundred and sixty acres of land (160) bounded or described as follows: South half of southwest quarter and southwest quarter of southeast quarter section twenty-five and northwest quarter of northeast quarter section 36, township 11, range 12, containing 160 acres more or less, lying in Marion county, state of Alabama. Said machinery is also located in Marion county, state of Alabama, and is the only machinery of this description now owned or in possession of the party of the first part. To have and to hold the said property, together with all appurtenances thereto belonging, and also the improvements that may be afterwards attached or added

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