Ex parte Arrington, 2 Div. 315

• Decision Date: 21 May 1953
• Docket Number: 2 Div. 315
• Parties: Ex parte ARRINGTON et al.
• Court: Alabama Supreme Court

Page 96

66 So.2d 96

259 Ala. 243

Ex parte ARRINGTON et al.

2 Div. 315.

Supreme Court of Alabama.

May 21, 1953.

Rehearing Denied June 30, 1953.

Wilkinson & Skinner, Birmingham, for petitioners.

Adams & Gillmore, Grove Hill, and McCorvey, Turner, Rogers, Johnstone & Adams, Mobile, for respondent.

STAKELY, Justice.

This is an original petition in this court by seventy-three individuals who sought to make themselves respondents and cross-complainants to a bill in equity pending in the Circuit Court of Choctaw County, Alabama. The application here is for a mandamus to the Hon. Joe M. Pelham, Jr., as Judge of the aforesaid court, sitting in equity, to require him to vacate and set aside a decree entered by him in Case No. 777 on the docket of the aforesaid court, entitled C. B. Morgan et al. v. Ellen Nix Clanahan, striking the answer and cross-bill filed in the aforesaid cause by the seventy-three persons, who are the petitioners here.

C. B. Morgan and thirty-two other parties filed a bill to quiet title to a tract of land lying in Choctaw County, Alabama, and more particularly described in the bill as follows:

'W 1/2 of NW 1/4 of Section 1; and NE 1/4 of Section 2; all in Township 10 North, Range 3 West.'

The lands described in the cross-bill, which was stricken, also lie in Choctaw County, Alabama, and are more particularly described as follows:

'W 1/2 of NW 1/4 of Section 2 and the SE 1/4 of SW 1/4 and the SW 1/4 of the SE 1/4 of Section 35.'

The original bill appears to be filed under and pursuant to § 1116 et seq., Title 7, Code of 1940, which appear in Article 2, Chapter 32, Title 7, Code of 1940. These statutes in Article 2 are described as 'Proceedings in Rem to Establish Title to Land'.

The answer and cross-bill was amended several times, but we shall only deal with the answer and cross-bill as last amended. While in the answers and cross-bills as originally filed title to all of the respondent land, namely the 240 acres described in the original bill, was claimed by the respondents, in the answer and cross-bill as last amended, the respondents claim only an undivided 5/6 interest in the W 1/2 of the NW 1/4 of Section 1 and admit that the complainants in the aggregate own an undivided 1/6 interest in this 80 acres. The respondents claim only an undivided 5/6 interest in the W 1/2 of the NE 1/4 of Section 2 and admit that the complainants in the aggregate own an undivided 1/6 interest in this 80 acres. As to the new land which they seek to bring into the suit, they contend for the full and complete interest in the NE 1/4 of the NW 1/4 of Section 2, lying West of the Nix Bridge Road and admit that the complainants in the aggregate own an undivided 1/6 interest in the NE 1/4 of the NW 1/4, lying East of the Nix Bridge Road. As to the SE 1/4 of the NW 1/4 of Section 2, lying West of the Nix Bridge Road, they claim an undivided 5/6 interest, but only a 2/3 interest in that part lying East of the Nix Bridge Road, and they admit that the other interest is owned by the cross-respondents in the aggregate, some being original complainants and some being entirely new parties. As to the SE 1/4 of the SW 1/4 of Section 35, they claim a 2/3 interest as to a portion thereof and a 5/6 interest as to the remaining portion. They admit that some of the cross-respondents own in the aggregate the remaining interest, some of these cross-respondents being original complainants and some being entirely new parties. As to the SW 1/4 of the SE 1/4 of Section 35, they apparently claim the full and complete interest in a portion of this forty and only a fractional interest in the remaining portion. As to the interest which they do not claim, they admit it is owned by some of the cross-respondents in the aggregate, some being original complainants and some being entirely new parties. It appears that the petitioners claim that a tenancy in common exists and they seek by this cross-bill to have not only the land described in the original bill but also the additional land described in the cross-bill, sold for division among the alleged tenants in common.

According to the answer and cross-bill it is alleged that the land described in the original bill together with the new land described in the cross-bill is one body of land, constitutes the entire Nix Place with the exception of one forty-acre tract, and was owned by Daniel Nix at the time he died or by his wife Adeline Nix at the time she died.

It appears from the answer and cross-bill that the following described land was patented by the United States to Daniel Nix on March 1, 1859:

'NW 1/4 of NE 1/4 and E 1/2 of NW 1/4 of Section 2, Township 10, Range 3 West; and SE 1/4 of SW 1/4 and SW 1/4 of SE 1/4 of Section 35, Township 11, Range 3 West.'

It also appears from the answer and cross-bill that the following described land was patented by the United States of America to David Daniel on June 1, 1860:

'W 1/2 of NW 1/4 of Section 1, S 1/2 of NE 1/4 and NE 1/4 of NE 1/4 of Section 2, Township 10, Range 3 West.'

No record title appears out of either Daniel Nix or David Daniel and presumably this is true as to the additional land which is sought to be brought into the litigation by the cross-bill.

It seems that the petitioners claim whatever title or interest they have in both the land described in the original bill and the additional land described in the cross-bill as heirs of Daniel Nix, who died in 1862. In this connection the petitioners allege in their answer and cross-bill the following:

'Daniel Nix and David Daniel were one and the same person whose true name was David Daniel Nix, but if respondents are in anywise mistaken in this averment, then they aver that David Daniel granted to Daniel Nix, I, before the said Daniel Nix, I, died in 1862, the land described in the patent from the United States of America to David Daniel.

'Respondents aver that the evidence of such grant was lost, mislaid, misplaced or destroyed before the same was filed for record or that the record thereof was destroyed in a fire that consumed the court house in Choctaw County, Alabama, in 1871, or that Daniel Nix, I, purchased said land from David Daniel and paid the full purchase price for same and went into possession thereof before his death.'

On January 17 and 18, 1951, a hearing was had and evidence taken ore tenus. The cause was submitted for final decree on January 18, 1951, and taken under submission at the time. Then followed a motion by the respondents to set aside the submission, a tender of a motion for leave to file an answer and cross-bill, which sought to bring the alleged remainder of the Nix Place by way of the cross-bill into the case, and motions by complainants to strike the tendered answer and cross-bill.

On January 28, 1951, the court set aside the submission taken on January 18, 1951, and allowed the respondents thirty days within which to file an answer. The respondents were also granted the right to cross-examine any witnesses who were examined on January 17th and 18th and to submit any competent evidence they desired. Like leave was given complainants.

The respondents were denied by decree of the court the right to file the answer and cross-bill attached to their motion to set aside the submission. This is the answer and cross-bill which sought to bring into the litigation the additional land alleged to be a part of the Nix Place. On September 22, 1952, the court rendered a decree holding in effect that the respondents were not entitled to have the land described in the original bill sold for division, that they were not entitled to have the additional land sold for division and on that date the court entered a decree striking the answer and cross-bill as last amended to the bill of complaint as last amended.

The case is submitted here on the petition for mandamus and the demurrer and answer of Judge Pelham, the demurrer not being waived by reason of filing the answer.

In the proceeding here for writ of mandamus the question for decision is whether the trial judge should be required to vacate his order striking the answer and cross-bill of the respondents to the original bill.

It seems to us that in analyzing the case, we should first consider the answer and cross-bill so far as it pertains to the land described in the original bill and then the answer and cross-bill as it pertains to the additional land described in the answer and cross-bill. In the statutes which make up what we have described as proceedings in rem to establish title to land, appearing in Article 2, Chap. 32, Title 7, Code of 1940, the statutes undertake to describe the contents of the bill of complaint and also the contents of a cross-bill. There appears to be no provision with reference to the contents of the answer in the in rem proceedings similar for example to Section 1111, one of the sections making up Article 1, Chapter 32, which is described as 'Personal Proceedings; How Conducted'. But we assume that surely the statutes providing for proceedings in rem contemplate that a person who files an answer under the in rem statutes can avail himself of equitable defenses to the original bill in the in rem proceedings, even though the bill is filed 'against said lands', because the bill is also filed against 'any and all persons claiming * * * any title to, interest in, lien or encumbrance on said lands, or any part thereof'. § 1116, Title 7, Code of 1940.

It must be appropriate in an answer to a bill filed under the in rem statutes for a respondent to show that the complainant does not own the entire interest in the land but only owns an undivided interest in the land and is a cotenant with the respondent. Since this appears to be true, there can be no reason why such an answer may not be made a cross-bill, and an independent equity set up in the cross-bill for which relief may be given by the court. In the present case the independent equity is the right to have the property sold for...