Burkett v. Newell

• Citation: 101 So. 836,212 Ala. 183
• Decision Date: 16 October 1924
• Docket Number: 6 Div. 116.
• Parties: BURKETT v. NEWELL.
• Court: Supreme Court of Alabama

101 So. 836

212 Ala. 183

BURKETT v. NEWELL.

6 Div. 116.

Supreme Court of Alabama

October 16, 1924

Rehearing Denied Nov. 27, 1924.

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by Deanie H. Burkett against Minnie L. Newell. Decree for respondent, and complainant appeals. Reversed and rendered.

Theodore J. Lamar, W. A. Weaver, and H. K. Long, all of Birmingham for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellee.

GARDNER J.

This is a statutory bill to quiet title to a certain vacant lot in the city of Birmingham, filed by appellant against the appellee.

The bill in its allegations met all the statutory requirements. Section 5443 et seq., Code 1907. The answer, however, did not meet the requirements of section 5445 of the Code, in that the respondent did not specify her title, but merely made response by way of the general averment that she was the owner of the property. In cases of this character complainant makes out a prima facie case by proof of peaceable possession and that no suit was pending, so as to cast upon the respondent the onus of showing his claim of right to the property. McDermond v. Hamby, 205 Ala. 522, 88 So 848; Kendrick v. Colyar, 143 Ala. 597, 42 So. 110; Whittaker v. Van Hoose, 157 Ala. 286, 47 So. 741.

Complainant's proof discloses, as previously stated, that this was a vacant lot, that she paid taxes thereon, prevented people from cutting the timber therefrom, placed a sign to keep off trespassers, and had the lot fenced and procured the city to place a sewer on the rear end of the lot. In addition to this, complainant testified that at the time of the filing of the bill she was in the exclusive possession of the property, and such, also, is the effect of the testimony of her husband. Possession is a collective fact, to which a witness can testify. Cooper v. Slaughter, 175 Ala. 211, 57 So. 477; Patterson v. Patrick, 202 Ala. 363, 80 So. 445. That there was no suit pending at the time of the filing of the bill to test the respondent's claim of title is admitted by the answer. We are of the opinion, therefore, that the complainant had sufficiently established her prima facie case so as to cast upon the respondent the burden of establishing her title. This respondent failed to do. She offered proof of no deed or other instrument tending to show title in herself. Her defense was directed principally, it seems, in an effort to break down the title of the complainant; but, as held in Whittaker v. Van Hoose, supra, in the absence of affirmative relief, sought by cross-bill, the sole question in cases of this character is whether the respondent has any title to or interest in the property.

Counsel for appellee lay stress, however, upon a portion of the evidence of the respondent wherein she stated that she was the owner of the property, or had purchased the same for herself. It is not insisted that legal title may thus be shown by a mere verbal declaration to that effect. Higdon v. Kennamer, 112 Ala. 351, 20 So. 470. But it is argued that the objections thereto...