City Loan & Banking Co. v. Poole

• Decision Date: 07 February 1907
• Citation: 149 Ala. 164,43 So. 13
• Parties: CITY LOAN & BANKING CO. v. POOLE.
• Court: Alabama Supreme Court

43 So. 13

149 Ala. 164

CITY LOAN & BANKING CO. v. POOLE.

Supreme Court of Alabama

February 7, 1907

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Suit to quiet title by Washington Poole against the City Loan &amp Banking Company. From a decree for complainant, defendant appeals. Affirmed.

Washington Poole filed his bill to quiet title to certain lots in the city of Birmingham, alleging that at a certain time one Bowman sold him the lots in question; that he paid the purchase money for the same, $300, and was put in possession of the property the next day, and had remained therein, in open, notorious possession, since; that Bowman promised to make him a deed to the same at once, but had never done so that soon after he made the purchase, but while he was in possession of the property, Bowman made a mortgage on it to one Prude, the president of the defendant loan company, and afterwards transferred the mortgage to the respondent loan company. He prays that the title be quieted. Demurrers were filed to the bill as follows: "No jurisdictional facts are set out as to the identity, age, or residence of respondent. It is too indefinite, in that it fails to show the character of the incumbrance or conveyance alleged to affect the title to said lands. It fails to allege that said John Bowman was vested with such a title to said lands that he could convey the same to complainant at the time of his alleged sale to complainant. It fails to show that the respondent herein had any notice of the said alleged sale by said Bowman to complainant at the time of the sale to respondent. It fails to allege that the said Bowman executed any conveyance, or any other instrument in writing sufficient to convey title, of said lands to complainant prior to the execution of his said conveyance to respondent. It fails to allege that there was any record or notice of said sale by said Bowman to complainant of said land filed or recorded according to law. It fails to allege the date of said alleged sale by said Bowman of said land to complainant. It fails to show facts of the alleged transaction upon which it bases the said alleged sale by said Bowman to complainant of said lands. It sets up a conclusion of complainant that there was a sale of said lands, without stating any fact, or the character of the writing or conveyance, if any, upon which it bases its statement of the sale by the said Bowman to the complainant of said land, or that said complainant was put in possession of said land contemporaneously with the payment of the alleged purchase money thereof." These demurrers were overruled, whereupon respondent filed his answer denying the allegations of the bill, and alleged its ownership by virtue of the deed executed to it by John W. Prude and recorded in the office of judge of probate: also by way of plea set up the statute of frauds. The evidence tended to show that on the 16th day of December, 1903, complainant gave Bowman a check on the First National Bank for the sum of $300, which Bowman cashed, and that the same was purchase money on the lots; that they met by agreement for the purpose of purchasing the lots; that Bowman said to complainant he would make him a deed to the lot at once, and directed him to go and take possession of the same; that on the next day complainant moved into the house, and has since occupied it with his family; and that the house was on the lots described in the bill. The evidence tended, further, to show that on the afternoon of December 16, 1903, Messrs. Edwards and Ray and their wives executed a conveyance to said Bowman to the lots in question. On the 9th day of August, 1904, Bowman executed his deed to these lots to J. W. Prude, and on December 7, 1904, Prude conveyed them to this appellant.

W. T. Ward and Z. T. Rudolph, for appellant.

J. M. Russell and W. S. Lewis, for appellee.

ANDERSON J.

The main point insisted upon by the appellant in this case is that its title should prevail over the claim of the appellee,...