Bank of Henry v. Elkins

• Decision Date: 10 February 1910
• Citation: 51 So. 821,165 Ala. 628
• Parties: BANK OF HENRY v. ELKINS.
• Court: Alabama Supreme Court

51 So. 821

165 Ala. 628

BANK OF HENRY v. ELKINS.

Supreme Court of Alabama

February 10, 1910

Appeal from Chancery Court, Henry County; L. D. Gardner, Chancellor.

Suit by S. A. Elkins against the Bank of Henry. From a decree overruling a demurrer to the bill, defendant appeals. Affirmed.

Espy & Farmer, for appellant.

P. A. McDaniel, for appellee.

McCLELLAN, J.

Independent of our statute for the quieting of titles and the determination of claims to real estate (Code, § 5443 et seq.), courts of equity have jurisdiction to cancel and remove a specially described cloud upon the complainant's title, when the owner is in possession, and when the evidence of the alleged cloud is not void on its face, and extrinsic evidence is necessary to show its invalidity. 4 Pomeroy, Eq. § 1399, and notes thereto; Jones v. De Graffenreid, 60 Ala. 145; Daniel v. Stewart, 55 Ala. 278; Plant v. Barclay, 56 Ala. 561.

The bill in the cause at bar invokes the stated jurisdiction of equity. It is not a bill seeking the benefit of the statutory system provided for in the before-cited statutes. In the third paragraph of the bill it is averred that complainant was, when the bill was filed, the owner and in possession of the lands sought to be relieved of the described cloud. The lands are definitely designated by reference, in that paragraph, to Exhibit A to the bill, viz., a deed to complainant of a specified date. Had the bill been an effort to avail of the statutory system mentioned, then, of course, observation of the statutory requirement would have been essential, such as averments of peaceable possession, and that there was no suit pending to enforce or test the validity of the title, claim, etc.

The demurrer was properly overruled. The decree is affirmed.

Affirmed.

ANDERSON, MAYFIELD, and SAYRE, JJ., concur.