City of Montgomery v. Brown
Decision Date | 04 September 1969 |
Docket Number | 3 Div. 261 |
Citation | 228 So.2d 820,285 Ala. 64 |
Parties | CITY OF MONTGOMERY v. Celia BROWN. |
Court | Alabama Supreme Court |
Horace Perry, and Walter J. Knabe, Montgomery, for appellant.
Frank W. Riggs, III, Montgomery, for appellee.
The subject matter of this litigation is a seventy-eight-acre tract of land to which one Sidney Hall had record title at the time of his death in September, 1911. In his will Hall devised the subject property to his sister, Olivia S. Ledyard.
On June 30, 1960, Celia Brown filed a bill in the Circuit Court of Montgomery County, in Equity, against the City of Montgomery.
The pertinent provisions of the stating part of the bill read:
'(5) Complainant avers that many years prior to 1957, she had perfected title in herself to said real estate by adverse possession and that the interference by respondent with complainant's possession of said real estate was unwarranted and unlawful.'
Aside from the prayer for process, the prayer of the bill reads:
'* * * complainant most respectfully prays that Your Honors will make and enter a decree as follows:
'(1) Quieting title to the aforedescribed real estate in your complainant.
'(2) Requiring respondent to account to complainant for all sums received by respondent as rental on the aforedescribed real estate.
'(3) Enjoining respondent from further interference with the title to and possession of said real estate by complainant.
'(4) And complainant prays for such other, further, different, and general relief as to which she may be entitled under the circumstances.'
On July 25, 1960, the respondent filed the general demurrer, 'There is no equity in said bill of complaint.'
Celia Brown died on or about October 16, 1960, and on October 13, 1961, the cause was revived 'in the names of Sadie B. Hinson, Myrtle B. Livingston, Stella M. McCall, Sidney A. Brown, Joyce Brown and Owen Brown as complainants.'
On August 31, 1962, the respondent, the City of Montgomery, amended its demurrer by adding two grounds.
Respondent's demurrer was overruled on November 16, 1962, by the late Judge Walter B. Jones. Respondent filed its answer on November 19, 1962.
The cause came on for trial before Judge Richard P. Emmet on September 1, 1966. Judge Emmet on September 26, 1966, rendered a decree in favor of the persons in whose names the cause was revived. The decree of September 26, 1966, contained the following provision:
'(6) That Respondent is directed to report to this Court within ten days from date of this decree, the amount of money collected by it as rent upon said real property so that a further order may be made entering judgment in favor of Complainants and against Respondent for such amount, jurisdiction of this cause being expressly retained for that purpose.'
On October 6, 1966, the respondent, the City of Montgomery, filed its report showing that it had received rents for the subject property in the amount of $900.
On October 14, 1966, Judge Emmet rendered a decree in favor of complainants against the respondent in the amount of $900.
The respondent, the City of Montgomery, has appealed to this court from the decree of September 26, 1966, and from the decree of October 14, 1966.
The appellant argues its Assignment of Error No. 1, which reads: 'The Court erred in overruling Respondent's demurrer.'
The ground of the demurrer, 'There is no equity in said bill of complaint,' argued by the appellant is, of course, a general demurrer.
A general demurrer is available in equity practice. Rule 14, Equity Practice, Title 7, Appendix, Code 1940; Wolff v. Woodruff, 258 Ala. 1, 61 So.2d 69; Southeastern Sand & Gravel Co. v. Newell Roadbuilders, Inc., 282 Ala. 431, 212 So.2d 598.
But a general demurrer, in equity, tests only defects in substance and all proper amendments are considered to have been made. Titus v. Nieheiser, 269 Ala. 493, 114 So.2d 242.
If the sole equity of the bill rests in the statutory proceeding to quiet title, then the trial court erred in overruling the general demurrer, 'There is no equity in the bill.' Sections 1109 and 1110, Title 7, Code 1940, read:
The bill filed in this cause fails to aver that there was no suit pending in regard to the subject property, which was necessary to give the bill equity in so far as it seeks under the provisions of § 1109 et seq., Code 1940, Title 7, to have the title quieted to the subject property. Corona Coal & Iron Co. v. Swindle, 152 Ala. 413, 44 So. 549; Grayson v. Roberts, 229 Ala. 245, 156 So. 552; Parker v. Boutwell & Son, 119 Ala. 297, 24 So. 860; Petcher v. Rounsaville, 267 Ala. 237, 101 So.2d 324.
The bill in this case in so far as it seeks to quiet title to the subject property under the provisions of § 1109 et seq., Title 7, Code 1940, fails to aver that at the time of the filing of the bill the complainant was in the peaceable possession of the subject property, actual or constructive. Donohoo v. Smith, 207 Ala. 296, 92 So. 455. The apparent contrary holding in Powell v. City of Birmingham, 258 Ala. 259, 61 So.2d 11, is overruled....
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