Hobson v. Robertson

Decision Date17 December 1931
Docket Number1 Div. 705.
Citation138 So. 548,224 Ala. 49
PartiesHOBSON v. ROBERTSON ET AL.
CourtAlabama Supreme Court

Appeal from Circuit Court, Clarke County; T. J. Bedsole, Judge.

Bill to remove cloud from title by S. A. Hobson against William Robertson, the Ramsey Petroleum Corporation, and the Texas Company. From a decree sustaining demurrers to the bill and dismissing it, complainant appeals.

Affirmed.

Adams &amp Gillmore, of Grove Hill, for appellant.

Quincey W. Tucker and Woodford Mabry, both of Grove Hill, and Pillans, Cowley & Gresham, of Mobile, for appellees.

THOMAS J.

The bill was to remove a cloud from the title to real property demurrers were sustained, and the bill was dismissed.

The facts alleged are that on February 21, 1914, complainant Hobson was the owner of the land; that he executed a mortgage on said date which was duly foreclosed (on February 14, 1916) after default; that the Jackson Bank & Trust Company became the purchaser, and on February 19, 1916, such vendee sold and conveyed said property to the respondent William Robertson which conveyance contained the stipulation that "in the event the above described land should be redeemed by S. A Hobson within the next two years that the said William Robinson [Robertson] shall have refunded all notes paid and returned to him all unpaid notes."

This provision for redemption was, no doubt, the predicate for the conveyance on February 11, 1918, by Jackson Bank & Trust Company of "all of the oil and gas and also all of the sulphur, potash, salts of all descriptions, and all other minerals and mineral compounds, in and under" said lands, to the said S. A. Hobson, his heirs and assigns. It will be noted that William Robertson was not a party to this conveyance and hence the suit.

The bill was filed on May 17, 1930, more than ten years after the execution of the conveyance from Jackson Bank & Trust Company to complainant Hobson.

The bill as amended pursuant to demurrer and its several exhibits will be read as one pleading and as aiding the averment of facts to the original and amended bill. Grimsley v. First Avenue Coal & Lumber Co., 217 Ala. 159, 161, 115 So. 90.

The demurrer being sustained to the bill as originally filed, the bill was amended three times, and, as finally amended, reverted substantially to the original bill, with respect to the method of redemption, by eliminating the allegations that William Robertson was a party to the agreement of and for redemption between Jackson Bank & Trust Company and Hobson, leaving merely the allegation that Robertson was "the recipient of the consideration therefor, in that he thereby acquired title to said lands, free from the claims of your complainant, excepting as to the oils, gases and other minerals and mineral compounds." It is further alleged, by way of conclusion from the foregoing averment of fact, that by and through said redemption, complainant became and "is the owner of all gases, oils, and other minerals and mineral compounds in and under said lands."

It is established by our decisions that one out of possession of land may not maintain a bill to remove a cloud on the title.

Section 9905, Code; Drum & Ezekiel v. Bryan, 193 Ala. 395, 69 So. 483; Brown v. Hunter, 121 Ala. 210, 25 So. 924; Morgan v. Lehman, Durr & Co., 92 Ala. 440, 9 So. 314; Burgin v. Hodge, 207 Ala. 315, 93 So. 27; Carr v. Moore, 203 Ala. 223, 82 So. 473; Foy v. Barr, 145 Ala. 244, 39 So. 578; Screws v. Heard, 217 Ala. 14, 114 So. 360; Gill v. More, 200 Ala. 511, 76 So. 453; Seeberg v. Norville, 204 Ala. 20, 85 So. 505; Davis v. Daniels, 204 Ala. 374, 85 So. 797; Miller v. Woodard, 207 Ala. 318, 93 So. 28. To maintain such a bill, possession, actual or constructive, is essential and must be definitely and unequivocally averred. Wilkinson v. Wilkinson, 129 Ala. 279, 30 So. 578; Galloway v. Hendon, 131 Ala. 280, 31 So. 603; Chapman v. Chapman, 194 Ala. 518, 70 So. 121; Carr v. Moore, supra. The subject-matter in Smith v. Gordon, 136 Ala. 495, 34 So. 838, was a mineral right, as in the instant suit.

The complainant-appellant insists that such defect, or failure of averment of possession, actual or constructive, if such it is, may be remedied by amendment, and urges decision on the vital questions, of whether complainant has any right to the oils, gases, and minerals in or under said lands, or "whether he has lost them by failing to obtain a conveyance or a written agreement (to such effect or in consummation of redemption) from William Robertson." Appellant's counsel say: "We have no written agreement with Robertson and if we are not entitled to relief without such a written agreement, there would be no point in our trying to proceed further." Such was the adverse ruling of the trial court.

Was Hobson entitled, under the statute, to disregard the sale of the land by Jackson Bank & Trust Company to Robertson, and to accomplish his redemption with Jackson Bank & Trust Company (February 11, 1918), who purchased at foreclosure of mortgage and theretofore sold to Robertson on February 19, 1916? The mortgagor and redemptioner had no such right to disregard that vendee under the statute.

The decisions of this court construing the provisions of the statute (sections 5746, 5748, Code 1907) of force at the time are to the effect that redemption operates on the title, so that any statutory redemption from foreclosure of mortgage must have recourse to the repository of the title-the holder of the title-regardless of intervening foreclosures and conveyances by which the title was acquired. Smith v. Jack, 209 Ala. 520, 521, 96 So. 419; Morrison v. Formby, 191 Ala. 104, 106, 67 So. 668; Hamilton v. Cody, 206 Ala. 102, 104, 89 So. 240; Hargett v. Franklin County, 212 Ala. 423, 103 So. 40.

In Allison v. Cody, 206 Ala. 88, 89 So. 238, 239, the court observes that: "The effectual, seasonable exercise by Cody of the statutory right to redeem from the subsequent vendee of the purchaser at the foreclosure sale *** operated to...

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    ......569; Woodall v. Southern Mfg. Co., 223 Ala. 262, 135 So. 446; Hobson v. Robertson, 224 Ala. 49, 138 So. 548; United States. Fidelity & ...530; City. of Walla Walla v. Walla Walla Water Company, 172 U.S. 1,. 19 S.Ct. 77, 43 L.Ed. 341. The violations as to enjoyment of. good ......
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    ...145 So. 450 226 Ala. 173 SCHWAB v. CARTER ET AL. 6 Div. 168.Supreme Court of AlabamaJanuary 12, 1933 . ...v. Jacks, 222. Ala. 475, 477, 132 So. 721; Hobson v. Robertson, 224. Ala. 49, 138 So. 548; United States ... Co. v. Spencer, 208 Ala. 663, 95 So. 1, and authorities. cited; Preston Motors Corporation v. ......
  • Watson v. Baker, 6 Div. 423.
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    ...the bill. and how and by what instrument the same is derived" and created. These averments were declared sufficient. In Hobson v. Robertson, 224 Ala. 49, 138 So. 548, was declared that under the statute a bill to remove a cloud on a title must be by one having actual or constructive possess......
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