Chestang v. Bower

• Decision Date: 21 January 1932
• Docket Number: 1 Div. 650.
• Parties: CHESTANG v. BOWER ET AL.
• Court: Alabama Supreme Court

140 So. 537

224 Ala. 469

CHESTANG v. BOWER ET AL.

1 Div. 650.

Supreme Court of Alabama

January 21, 1932

Rehearing Denied March 31, 1932.

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Bill to quiet title by Edith Bower, Charles Anderson, and Charles M Kirk against Clemont S. Chestang, with a cross-bill by respondent. From a decree for complainants on pleadings and proof, after demurrers to cross-bill had been sustained respondent appeals.

Reversed and remanded.

Gordon, Edington & Leigh and Jere Austill, all of Mobile, for appellant.

Harry T. Smith & Caffey, of Mobile, for appellees.

BROWN J.

This appeal is from a decree quieting the title to the southwest quarter of section 33, township 1 north, range 1 east, Mobile county, in the appellees, Edith Bower, Charles Anderson, and Charles M. Kirk, against the claim of the defendant, appellant here, Clemont S. Chestang.

The bill is filed under the statute, Code 1923, § 9905, to which the defendant filed an answer which he made a cross-bill, denying complainants' ownership and title, asserting title in himself to 105 acres of the tract lying east of the Mobile river, and north and west of Bayou Matchy, specifying the conveyances under and through which he claimed title, among others, a deed from John K. Dillard executed on July 1, 1913, and another executed on August 6, 1914, and alleging that the complainants had acquired possession by trespasses which were continuing, and, in addition to praying that his title be established and quieted, he prayed that the complainants be restrained and enjoined from trespassing on the property which he owns.

The complainants answered the cross-bill, incorporating in their answer three grounds of demurrer, which appear in the reporter's statement of the case. The answer denied the averments of the cross-bill, and alleged that John K. Dillard, under whom the defendant claimed title, before the execution of the deed to defendant, had parted with his title by deed executed to the complainants on June 2, 1910.

The court sustained the demurrers to the cross-bill, and the case was thereupon submitted on the pleadings and proof, resulting in the decree from which the appeal is prosecuted.

The first assignment of error questions the soundness of the ruling of the court on the demurrer to the cross-bill.

It is settled that, in proceedings under the statute to quiet title, if the averments of the bill and the answer conform to the requirements of the statute, the issues thus formed are broad enough to authorize the court to settle and quiet the title in one or the other of the parties, or, if it is shown that complainant owns part of the land and the defendant part, the decree may so declare, and settle the title accordingly, and to this end a cross-bill is not necessary. Grayson v. Muckleroy, 220 Ala. 182, 124 So. 217; Friedman & Loveman v. Shamblin et al., 117 Ala. 458, 23 So. 821.

It is only where the respondent seeks affirmative relief outside the scope and purpose of the statutory proceedings that a cross- bill is necessary or proper. Grayson v. Muckleroy, supra; Cheney, Trustee v. Nathan, 110 Ala. 260, 20 So. 99, 55 Am. St. Rep. 26.

The averments and prayer of the cross-bill in this case, in so far as they seek to enjoin the complainants-defendants to the cross-bill-and their agents from trespassing, bring it within the last-stated principle.

The ruling on the demurrer to the cross-bill, however, if error, would be without injury, if the defendant has failed to establish title to the property.

The parties claim title to the property from a common source, to wit, Mary V. Dillard, and the soundness of the decree settling the title in the complainants depends largely upon the construction and legal effect of the deed executed by said Mary V. Dillard to John K. Dillard on the 21st of September, 1903, and duly filed for record in the office of the judge of probate of Mobile county on the 21st day of January, 1904, and the deed executed by John K. Dillard and others on the 2d day of June, 1910, to Helen W. Bower, and duly recorded on June 4, 1910.

The deed first above mentioned, for a stated valuable consideration, conveyed to said John K. Dillard lands described as follows: "One hundred and five acres of land being and lying in the County of Mobile in the State of Alabama, and particularly described as follows: Bounded West by Mobile River, and being North of Bayou Matchy and in the Southwest quarter of Section 33, in Township one North, Range one West (East), said land is bounded on the East and South by Bayou Matchy, and contains one hundred and five acres of land."

The evidence is without dispute that said John K. Dillard, soon after the execution of said deed, took possession of the land conforming to the above description, located in section 33, township 1 north, range 1 east, and exercised ownership over it until he sold the land to the defendant; and the evidence is further without dispute that the land was erroneously described as range 1 west in said deed and in the first conveyance made by Dillard to the defendant in 1913; that the land located in the southwest quarter of section 33, township 1 north, range 1 east, bounded on the west by the Mobile river, and on the south and east by Bayou Matchy, was pointed out to defendant by Dillard as the land he was selling to defendant, the parties going on the land at the time.

The question to be decided is whether or not the above-indicated error in the description is self-correcting when aided by facts of which the court may take judicial knowledge.

The government survey and plat of section 33, township 1 north range 1 east, shows that the Mobile river touches the northwest quarter of section 33, township 1 north, range 1 east, and enters the southwest quarter of said section at its northwest corner, and passes through the western portion of said quarter section, leaving a small body of land in said quarter section west of the river, and the remainder east of the river. Bayou Matchy enters said quarter section near the river,...