Coffman v. Henderson

• Decision Date: 11 November 1913
• Citation: 63 So. 808,9 Ala.App. 553
• Parties: COFFMAN v. HENDERSON.
• Court: Alabama Court of Appeals

63 So. 808

9 Ala.App. 553

COFFMAN v. HENDERSON.

Court of Appeals of Alabama

November 11, 1913

Rehearing Denied Dec. 9, 1913

Appeal from Circuit Court, Jefferson County; E.C. Crow, Judge.

Action by Mrs. Tippie Coffman against T.M. Henderson for damages for placing cloud upon title. Judgment for defendant on demurrer and plaintiff appeals. Affirmed.

The following is the complaint:

"Count 3. Plaintiff claims of defendant the further sum of $100 with interest thereon, for that on, to wit, the 3d day of May, 1911, defendant filed or caused to be filed in the office of the probate judge of Jefferson county, Ala., a certain notice or declaration of lien in substance as follows: 'State of Alabama, Jefferson County. Personally appeared before me Rosa Michler, a notary public in and for said state and county, T.M. Henderson, who being first duly sworn says as follows: (1) That Mrs. Tippie Coffman is the owner of the property hereinafter described and upon which affiant claims a lien. (2) Said property being described as follows: Lot 15, on Charles street, according to map of C.J. Plosser's survey as recorded in map book 4, p. 95, in the office of the probate judge of Jefferson county, and also lots 24, 25, 26, 27, and 28, in block 10, Kenilwood, situated in the suburb of West End, Birmingham. (3) Said lien is claimed for work and labor done by affiant upon the building upon said lot, and that, after allowing all just credits, there is due affiant the balance of $84.50, which sum is a just and true account of the amount claimed, an itemized statement of which is hereto attached, marked Exhibit A, and made a part of this affidavit. T.M. Henderson. Sworn to and subscribed before me this the 3d day of May, 1911. Rosa Michler, N.P.' Plaintiff avers that, at the time said notice or declaration of lien was filed, said T.M. Henderson had no lien on the above-described property; that she was not in any wise indebted to said T.M. Henderson; that said T.M. Henderson failed or refused to cancel said notice or declaration or remove the same from the record after being notified to do so, and as a proximate consequence plaintiff avers that the title to the above-described property was damaged for a long time; that she was prevented from making profitable disposition of the same and was made to lose the valuable profits on the sale of said property, which she had an opportunity to make, and was put to great trouble, expense, annoyance, and inconvenience in and about having said notice or declaration removed; and that said property was rendered less marketable, all to the damage of plaintiff, as aforesaid, in the sum of $100."

Count 4 is the same as count 3, and adds the following: "Plaintiff further avers that she suffered said wrongs and damages complained of as a direct and proximate consequence of the wrongful and malicious maintenance of said cloud on the title to said property of plaintiff by defendant, wherefore she sues. The demurrers raise the proposition that the counts contain no cause of action because they fail to aver that defendant maliciously filed said lien or notice, or that he wrongfully filed said lien or notice, or that he falsely filed said lien or notice, and that the damages are too remote."

Horace C. Wilkinson, of Birmingham, for appellant.

McQueen & Ellis, of Birmingham, for appellee.

THOMAS J.

The reporter will set out counts Nos. 3 and 4 of the complaint, which fully state plaintiff's (appellant's) alleged cause of action; all other counts having been withdrawn. A demurrer was interposed, separately and severally, to each of these counts (3 and 4), upon the sustaining of which by the court the plaintiff declined to plead further and brings this appeal solely for a review of the questions raised by the demurrer.

We are of opinion, without considering the others (which becomes entirely unnecessary), that one ground of the demurrer at least was well taken. It raises the point that the complaint fails to allege that the notice or statement of the claim of a mechanic's lien, alleged to have been filed by defendant in the probate office of Jefferson county against plaintiff's property, was maliciously so filed.

The damages claimed, as will be observed from reading the complaint set out in the report of the case, are such as are alleged to have resulted from a disparagement by defendant of plaintiff's title to certain real estate by filing and recording said claim of a lien against it; and the action falls, of course, within the class denominated in the law as "slander of title," which is defined to be "a false and malicious statement, oral or written, made in disparagement of a person's title to real or personal property, or of some right of his, causing him special damage." 25 Am. & Eng.Ency.Law, 1074. The false statement may consist of an assertion either that the plaintiff has no title to the property of which he is the ostensible owner, or that his title is defective, or that, as here, the defendant has himself an interest in or lien upon the property. Moore v. Rolin, 89 Va. 107, 15 S.E. 520, 16 L.R.A. 625; Ency. supra. Whatever be the statement, however, in order for it to form the basis of a right of action it must have been made, not only falsely, but maliciously. These elements are the very gist of the action, without both of which it does not exist. 25 Am. & Eng.Ency.Law (2d Ed.) 1078, 1079; 13 Ency.Pl. & Pr. 97; Hill v. Ward, 13 Ala. 310; Ivey v. Pioneer Savings & Loan Co., 113 Ala. 349, 21 So. 531; Moore v. Rolin, supra; Code, § 2459.

The allegation of the complaint to the effect that, at the time the defendant filed and had recorded in the probate office of ...