Adams v. Wilson

• Decision Date: 18 June 1903
• Citation: 137 Ala. 632,34 So. 831
• Parties: ADAMS v. WILSON ET AL.
• Court: Alabama Supreme Court

34 So. 831

137 Ala. 632

ADAMS v. WILSON ET AL.

Supreme Court of Alabama

June 18, 1903

Appeal from City Court of Birmingham; Chas. A. Senn, Judge.

Bill by John J. Adams against William H. Wilson and another. From a decree sustaining a demurrer to the bill, plaintiff appeals. Affirmed.

The defendant Wilson demurred to the bill upon the following grounds: (1) Because it affirmatively appears from the allegations of said bill that there is no overlappage in the description of the land of complainant and the land of this defendant. (2) Because said bill is multifarious in this that the tract of land of this defendant, described in said bill, is separate and distinct from and not in any way connected with that of Loula V. Herman, and the relief sought against this defendant is separate and distinct from, and independent of, that sought against the said codefendant. (3) Because it appears from said bill of complaint that there is a strip or gore of land between the eastern boundary of complainant's land as described in said bill, and the western boundary of this defendant's land as described in said bill, and that neither of the parties to said suit is the owner of the legal title to said strip or gore of land and the owner of the legal title to said strip or gore of land is not made a party defendant to said bill. The separate demurrer of the defendant Herman was based upon the same grounds as the first and second grounds of Wilson, except that the name of Wilson appears in the second ground in the place of the name of Herman. The defendant also moved to dismiss the bill for the want of equity. Upon the submission of the cause upon the motion to dismiss the bill for the want of equity and upon the demurrers, the chancellor rendered a decree overruling the motion to dismiss the bill, for the want of equity, and the demurrer of Herman, but sustained the demurrer of Wilson.

Ward &amp Houghton, for appellant.

Banks &amp Selheimer, for appellee.

DOWDELL J.

The bill in this cause was filed by the appellant, Adams, against Loula V. Herman and William H. Wilson. Separate demurrers were filed by the respondents to the bill. The appeal is taken from the decree of the court sustaining the demurrer of the respondent Wilson.

The theory of the bill is that there is an overlap in the description of two tracts of land simultaneously conveyed by a common grantor, Ann Roebuck, to her two daughters, Loula V. Herman and Ann E. Adams, through whom appellant and appellee claim title, the former claiming under Ann E. Adams, and the latter under Loula V. Herman. The bill avers that the respondents are in possession of the alleged overlap, and the relief prayed is for an apportionment of the overlap, and adjustment accordingly of the boundaries of the two tracts. The allegations of the bill show that there were two separate and distinct surveys of the tracts in question, and, of necessity, one must have been prior in point of time to the other. In fact, in the description of the tract conveyed to Ann E. Adams the prior survey of the land conveyed to Loula V. Herman is referred to, and from the language used it may be inferred that the two surveys were made by different surveyors. The contention of appellee is that there is no overlap, and we think, on the facts shown by the bill, this contention is sound.

The equitable doctrine of apportionment, as applied to overlapping land in certain cases, cannot be invoked in every instance where grants from a common grantor encroach one upon the other. We think the doctrine is...