Chappelear v. McWhorter, 7 Div. 59

CourtSupreme Court of Alabama
Writing for the CourtMcCLELLAN, J. McCLELLAN, J.
Citation85 So. 386,204 Ala. 269
PartiesCHAPPELEAR v. McWHORTER.
Decision Date05 February 1920
Docket Number7 Div. 59

85 So. 386

204 Ala. 269

CHAPPELEAR
v.
McWHORTER.

7 Div. 59

Supreme Court of Alabama

February 5, 1920


On Rehearing, May 20, 1920

Appeal from Circuit Court, Cherokee County; W.W. Haralson, Judge.

Bill by R.A.. McWhorter against R.R. Chappelear to acquire title to certain lands and for other purposes. From a decree overruling demurrers to the bill, respondent appeals. Affirmed.

Hugh White, of Gadsden, for appellant.

Hugh Reed, of Center, for appellee.

McCLELLAN, J.

The defendant's demurrer to the original bill being overruled, he appeals to review that action of the court. The original bill, in paragraphs 1 and 2, would avail of the statutory system for the quieting in equity of the title, etc., to land. Code, § 5443 et seq. Averments presenting this feature of complainant's claim for relief were sufficient to justify the court in refusing to sustain the general demurrer, asserting the want of equity in the bill. Moore v. Alton, 192 Ala. 261, 68 So. 326. The third paragraph of the bill avers that the lands of these parties adjoin and that there is a dispute between them as to the location of the true dividing line; and the fourth paragraph proceeded on the theory (whether well or illy pleaded not being brought into question) that defendant was engaged in damaging, if not destroying, the mineral spring on this land by constantly polluting its waters or otherwise interfering with complainant's property rights therein. The prayers for relief, in addition to a general prayer, consisted with these several theories of right to relief.

What is called in the brief the "special demurrer," addressed to the bill as a whole, contained these grounds only:

"(2) That said bill shows that the complainant has a plain, adequate, and complete remedy at law in an action of ejectment
"(3) That said bill shows that the complainant has a plain, adequate, and complete remedy at law in an action of trespass
"(4) That said bill shows that its purpose is to settle a disputed boundary line, and that equity has no jurisdiction of said suit, but that his remedy is at law."

Since the demurrer is addressed to the bill as a whole, error cannot be imputed to the court in overruling the demurrer, the bill possessing equity in respect of its invocation of the statutory system for quieting titles to land, etc. Code, § 5443 et seq.; 5 Mich.Ala.Dig. p. 565, p. 172, noting many decisions applicable here. Furthermore, under subdivision 5...

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7 practice notes
  • Snodgrass v. Snodgrass, 8 Div. 568.
    • United States
    • Supreme Court of Alabama
    • October 23, 1924
    ...on the fraud or neglect of duty of the defendant, whereby the confusion or obliteration has resulted." In Chappelear v. McWhorter, 204 Ala. 269, 85 So. 386, the observation is made that no question of the title to the land is projected by averments of the pleading. Such is the lack of plead......
  • Smith v. Cook, 8 Div. 83.
    • United States
    • Supreme Court of Alabama
    • October 24, 1929
    ...in principle here, even if demurrer had been interposed on that ground; certainly not when there is no demurrer. McWhorter's Case, 204 Ala. 269, 85 So. 386. It may be true that in such a suit the bill should point out the true boundary line as is necessary in framing an issue of such nature......
  • Yauger v. Taylor, 2 Div. 916
    • United States
    • Supreme Court of Alabama
    • May 24, 1928
    ...upon and perfected by adverse possession. In later cases, such as Billups v. Gilbert, 195 Ala. 518, 70 So. 145, Chappelear v. McWhorter, 204 Ala. 269, 85 So. 386, and Harley v. Chandler, 204 Ala. 207, 85 So. 546, it was recognized that a bill following the statute was sufficient to confer j......
  • Turner v. De Priest, 4 Div. 897
    • United States
    • Supreme Court of Alabama
    • February 10, 1921
    ...for decision was unnecessary to a decision in Billups v. Gilbert, supra. Again the statute was adverted to in Chappelear v. McWhorter, 85 So. 386, where on rehearing it is said: "The third paragraph of the bill avers explicitly there is a dispute as to the boundary line between the adjacent......
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7 cases
  • Snodgrass v. Snodgrass, 8 Div. 568.
    • United States
    • Supreme Court of Alabama
    • October 23, 1924
    ...on the fraud or neglect of duty of the defendant, whereby the confusion or obliteration has resulted." In Chappelear v. McWhorter, 204 Ala. 269, 85 So. 386, the observation is made that no question of the title to the land is projected by averments of the pleading. Such is the lack of plead......
  • Smith v. Cook, 8 Div. 83.
    • United States
    • Supreme Court of Alabama
    • October 24, 1929
    ...in principle here, even if demurrer had been interposed on that ground; certainly not when there is no demurrer. McWhorter's Case, 204 Ala. 269, 85 So. 386. It may be true that in such a suit the bill should point out the true boundary line as is necessary in framing an issue of such nature......
  • Yauger v. Taylor, 2 Div. 916
    • United States
    • Supreme Court of Alabama
    • May 24, 1928
    ...upon and perfected by adverse possession. In later cases, such as Billups v. Gilbert, 195 Ala. 518, 70 So. 145, Chappelear v. McWhorter, 204 Ala. 269, 85 So. 386, and Harley v. Chandler, 204 Ala. 207, 85 So. 546, it was recognized that a bill following the statute was sufficient to confer j......
  • Turner v. De Priest, 4 Div. 897
    • United States
    • Supreme Court of Alabama
    • February 10, 1921
    ...for decision was unnecessary to a decision in Billups v. Gilbert, supra. Again the statute was adverted to in Chappelear v. McWhorter, 85 So. 386, where on rehearing it is said: "The third paragraph of the bill avers explicitly there is a dispute as to the boundary line between the adjacent......
  • Request a trial to view additional results

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