Bolen v. Allen

• Decision Date: 19 December 1906
• Citation: Bolen v. Allen, 43 So. 202, 150 Ala. 201 (Ala. 1906)
• Parties: BOLEN v. ALLEN, SHERIFF, ET AL.
• Court: Alabama Supreme Court

43 So. 202

150 Ala. 201

BOLEN v. ALLEN, SHERIFF, ET AL.

Supreme Court of Alabama

December 19, 1906

Rehearing Denied March 2, 1907.

Appeal from Chancery Court, Clarke County; Thos. H. Smith Chancellor.

Action by John A. Bolen against R. G. Allen, sheriff, and another. Judgment for defendants, and plaintiff appeals. Affirmed.

J. S Graham and A. L. McLead, for appellant.

Massey Wilson, for appellees.

DENSON J.

Mrs Zedora Hoven sued J. A. Bolen, in an action of ejectment in the circuit court of Clarke county, to recover certain real estate located in the town of Jackson, in said county. Judgment was rendered in her favor against Bolen for the lands sued for. A writ of possession, issued on the judgment, was placed in the hands of R. G. Allen, sheriff of Clarke county, to be executed. Thereupon Bolen filed this bill in the chancery court against Allen and Mrs. Hoven. In the bill it is averred that a certain strip of land, particularized therein, is not embraced in the complaint, the judgment in the ejectment suit, or in the writ of possession. It is also averred that complainant's residence is located on the particular strip of land, and that the sheriff, acting under the directions of Mrs. Hoven, has demanded of complainant possession of the residence under the writ, and threatens to put him out of possession of the strip of land and the residence. It is then averred that Mrs. Hoven "claims a right to said property [strip of land] under and by virtue of her judgment in the ejectment suit or under some other right." The prayer of the bill is that Mrs. Hoven be required to specify her title or claim to the said strip of land, and by what instrument the same is derived; that on the final hearing Mrs. Hoven may be adjudged to have no title or right to said strip of land, or the possession thereof; and that the title of complainant be quieted. An injunction is prayed for against Allen, as sheriff, and against Mrs. Hoven, to prevent the execution of the writ of possession as to the particular strip of land. A temporary injunction was granted. The respondents filed separate answers under oath, in which the allegations of the bill in respect to the strip of land not being embraced in the complaint, judgment, and writ of possession are denied; and Mrs. Hoven alleges affirmatively that the description of the land in the complaint, judgment, and writ embraces the land on which complainant's residence is located. A motion to dismiss the bill for want of equity, and to dissolve the injunction for want of equity, in the bill and on the sworn denials in the answers, was granted by the chancellor, and from the chancellor's decree this appeal is prosecuted.

The gist of the bill is really an effort on the part of complainant to have the chancery court determine whether the land on which complainant's residence is located is embraced in the description contained in the writ of possession; in other words, to have that court determine a dispute between complainant and Mrs. Hoven as to what is covered by the description in the writ. The insistence of the complainant (appellant), however, is that the bill seeks to compel the determination of claims to land and quiet titles under sections 809-813 of the Code of 1896. The bill fails to aver that no suit is pending to enforce or test the validity of Mrs. Hoven's title or claim; and, taking the averments of ...