Adler v. Sullivan

• Court: Alabama Supreme Court
• Writing for the Court: HARALSON, J.
• Citation: Adler v. Sullivan, 115 Ala. 582, 22 So. 87 (Ala. 1897)
• Decision Date: 19 May 1897
• Parties: ADLER ET AL. v. SULLIVAN.

22 So. 87

115 Ala. 582

ADLER ET AL. v. SULLIVAN.

Supreme Court of Alabama

May 19, 1897

Appeal from chancery court, Montgomery county; Jere N. Williams Chancellor.

Bill by Martin H. Sullivan against Morris Adler and others, under the statute, to compel the determination of claims to real estate. From a decree overruling a demurrer to the bill defendants appeal. Affirmed.

John P Tillman, George F. Moore, and Tompkins & Troy, for appellants.

Thos H. Watts, for appellee.

HARALSON J.

The bill in this case described the lands with certainty, and averred complainant's possession of them for more than five years before the institution of the suit; that complainant's title to said lands is denied and disputed by defendants, who claim to own the same, or some interest therein, or to hold some lien or incumbrance thereon; that no suit is pending between any of the parties and complainant to enforce the validity of their claim, title or incumbrance; that complainant brings his suit to settle the title to the lands and clear up all doubts and disputes concerning the same, and calls on each defendant to set forth and specify his title, claim, interest or incumbrance, and by what instrument the same is derived or created. It prays the court to adjudge and decree, that all title, claim, interest or incumbrance set up to the lands by defendants, or any of them, are invalid, and that complainant's title thereto is clear of all doubt and dispute concerning the same, and that each of the defendants be perpetually enjoined from setting up or asserting any claim or title to, or incumbrance on said lands, or any part thereof, adverse to complainant, and for general relief.

The mere reading of the bill in connection with the statute,-under which it is filed (Acts 1892-93, p. 42),-suffices to show that it contains the necessary averments under the act, to give the court jurisdiction and to authorize relief. Indeed, we do not understand the demurrer to question the sufficiency of these averments. It is true, that in addition to the foregoing averments, the bill,-as was done in the case of Ward v. Janney, 104 Ala. 122, 16 So. 73,-set out the source and character of complainant's title and possession, but this, while it served to give notice to defendants of the title and possession on which he relies in opposition to any claim or title that defendants may bring to view in their answers, was not indispensable to the equity of the bill.

The appellants waive all grounds of demurrer in their argument, except the one, whether the lands in question were subject to taxation when the tax sales were made, under which complainant claims title. The sole object of this contention is to show, that the complainant has no title to the lands under said tax titles set up in his bill, on which he can legally hold them. In other words, the proposition is, if complainant by his bill shows that his claims of tax titles are invalid, he has no right of title to or possession of the lands, and his bill must fail. But, this contention is not admissible in a suit under the act in question. It may be that the tax titles under which complainant claims, may fail for many reasons, but if they do, non constat the defendants have a better right of title or possession than he has. The act does not require the complainant to have title by possession or the right of possession, but if he has peaceable possession, under claim of ownership, as contradistinguished from possession which is disputed or contested, it is all, as to this, the statute requires. The averment as to possession is,-just as the statute requires,-that no suit is pending between any of the parties and complainant to enforce the validity of any title, claim or incumbrance of defendants. As to them, the possession is thus averred to be peaceable and undisturbed. It cannot be known before the answer of defendants, that they have any title to, interest in or incumbrance on said lands. They may in their answers disclaim any interest. It may be, again, if they file answers, that they can show no right, title or interest which will be superior to complainant's right of possession. All this is to appear on the coming in of their answers.

The title to the act in question indicates its purpose to be, "to compel the determination of claims to real estate, etc.", and to require a defendant to disclose his claim. Section 3 of the act is further indicative of this purpose, in that it requires, "that if any defendant shall answer, claiming any estate, or interest in or incumbrance on said lands, or any part thereof, he shall in such answer specify and set forth the estate, interest or incumbrance, so claimed, and if not claimed in or upon the whole of said lands, he shall specify and describe the part in or upon which the same is claimed, and shall set out the manner in which, and the sources through which, such interest, estate or incumbrance is claimed to be derived."

The fourth section provides, that a trial by jury, upon the application of either party, may be directed to try the validity of...